DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
13 SUCCESSION
WINTER SESSION 2016
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed
Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW
Admission Board Rules 2015.
Course Description and Objectives
Lecturer
Assessment
September 2016 Examination
Lecture Program
Weekend Schools 1 and 2
Tutorials in Succession
Texts and Materials
Compulsory Assignment
Assignment Question
Prescribed Topics and Course Outline
Statutory Extracts
1
1
1-2
2
2
3
3
4
4
5
6-10
11-52
1
LAW EXTENSION COMMITTEE
WINTER 2016
13 SUCCESSION
COURSE DESCRIPTION AND OBJECTIVES
The law of Succession is concerned with the law of wills and the administration of deceased estates.
The applicable principles vary depending upon whether the deceased dies with or without a will and in
either case the distribution of the estate may be affected by a claim for family provision brought under
Chapter 3 of the Succession Act.
The object of the course is to acquaint students with the relevant statutory principles and case
authorities to enable them to administer deceased estates and to anticipate and avoid administration
and other succession problems by the professional drafting of wills and the provision of professional
advice to clients.
LECTURER
Mr J. E. F. Brown, LLB, Masters of Applied Law (Wills and Estates)
Justin is a barrister practising out of 13th Wentworth/Selborne Chambers. Prior to coming to the Bar,
Justin practised at a firm specialising in Wills and Estates and completed the Masters of Applied Law
(Wills and Estates) through the College of Law. Since then he has delivered numerous papers on the
topic of Succession and is a guest lecturer at the College of Law. At the Bar, Justin practises in Wills,
Estates, Trusts and Equity.
ASSESSMENT
To be eligible to sit for the Legal Profession Admission Board’s (LPAB) examinations, all students
must complete the Law Extension Committee (LEC) teaching and learning program, the first step of
which is to ensure that you have registered online with the LEC in each subject for which you have
enrolled with the LPAB. This gives you access to the full range of learning resources offered by the
LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the LPAB. Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
2
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The LEC administers the setting and marking of assignments. The LEC engages the LPAB’s
examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined
in the Guide to the Presentation and Submission of Assignments. Prior to the examination,
assignments will be returned to students and results posted on students’ individual results pages of
the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in
that subject will be included in the Revising Examiner’s review. The final examination mark is
determined in accordance with this review. Assignment marks will not otherwise be reviewed.
SEPTEMBER 2016 EXAMINATION
Candidates will be expected to achieve a thorough knowledge and understanding of the basic legal
principles of the law of Succession, and to demonstrate an ability to apply these principles to fact
situations, referring to relevant cases and statutory provisions as appropriate.
Candidates will be expected to have a detailed knowledge of the prescribed topics:
Intestate succession; Definition and nature of a will; The mental and formal requirements for will
making; The rectification of wills; The revocation, alteration, republication and revival of wills; The
jurisdiction of the probate court; Grants of representation; Estates pending grants of representation;
Some powers and duties of a legal personal representative; Gifts by will; Administration of solvent
estates; and family provision.
All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.
The only material which will be allowed in the exam will be the Course Outline.
LECTURE PROGRAM
Lectures in Succession will be held on Wednesdays, from 6 pm to 9 pm, commencing 11 May. In the
first half of the semester, they will be held in New Law School Lecture Theatre 026 (New LSLT 026).
Lecture venues for the second half of the semester have yet to be confirmed.
NOTE:
The Study Break will be from Saturday 18 June – Sunday 3 July 2016.
3
WEEKEND SCHOOLS 1 AND 2
There are two weekend schools primarily for external students. Evening lecture students may attend
the weekend schools on the understanding that it is not possible to cover the entire course at the
weekend schools and that the weekend school classes are primarily for the assistance of external
students.
These programs are a general guide and may be varied according to need.
First Weekend School
Saturday 28 May 2016 (8am-noon) (in New Law School Lecture Theatre 106 – New LSLT 106)
Sunday 29 May 2016 (noon-4pm) (in New Law School Lecture Theatre 106 – New LSLT 106)
Topics to be covered:
1.
Terminology and general framework
2.
Intestate succession
3.
Testate succession
a. The mental element
b. Formal requirements
c. The rectification power
d. Revocation of wills
e. Obliterations, interlineations and alterations
f.
Republication and revival of wills
Second Weekend School
Saturday 23 July 2016 (8am-noon) (in New Law School Lecture Theatre 106 – New LSLT 106)
Sunday 24 July 2016 (noon-4pm) (in New Law School Lecture Theatre 106 – New LSLT 106)
Topics to be covered:
1.
Family provision
2.
Administration of estates
a. Types of gifts by will
b. The statutory order of application of assets
c. Locke King’s Act
d. Protected assets
TUTORIALS IN SUCCESSION
This semester the LEC will be offering Succession tutorials.
The first tutorial will be held from 12 noon to 4 pm on Friday 27 May, at the start of Weekend School 1.
Further information regarding this and any additional tutorials will be made available during the second
week of lectures.
Students are required to have considered specified problem questions prior to attending a tutorial. The
questions and further details will be posted on the Webcampus.
4
TEXTS AND MATERIALS
For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free shipping on
purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au. Students quoting the promo code LECW2016
will receive a 15% discount on all text titles (except for those authored by John Carter). This discount is not limited to the
prescribed or recommended texts for our courses. Students should, however, still compare LexisNexis’s discounted price with
that of other outlets. The Co-op Bookshop, for example, offers a discount on texts sold to its members.
Course Materials

Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Materials

Text: Certoma, The Law of Succession in New South Wales, 4th ed. Thomson Reuters, 2010.
The material covered in ch 1, 2, and paras 11.210-11.230, 11.270-11.380, 11.430-11.610 and
11.750-11.830 of ch 11 is not examinable.

Casebook: Certoma, Succession: Commentary and Materials, 6th ed. Thomson Reuters, 2011.
The material which appears under the heading "Insolvent Estates" in ch 16 is not examinable.
Prescribed Statutes


Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Reference Materials



Certoma, Wills in Practice: NSW Handbook, CCH Australia (Loose leaf service)
Handler, Succession Law and Practice NSW, LexisNexis (Loose leaf service)
Rowland, Hutley’s Australian Wills Precedents, LexisNexis, 7th ed, 2009
LEC Webcampus
Once you have registered online with the LEC, you will have full access to the facilities on the
Webcampus including links to relevant cases and legislation in the Course Materials section.
COMPULSORY ASSIGNMENT
In Succession, there is only ONE ASSIGNMENT. This assignment is compulsory and must be
submitted by all students. Students must submit the assignment by the due date. A pass mark
is 50%. The assignment question will be posted on the LEC Webcampus in the second week of
classes. Refer to the Guide to the Presentation and Submission of Assignments for the
assignment grading and assessment criteria.
The maximum word limit for the assignment is NO MORE THAN 1500 words (inclusive of all
footnotes but not bibliography). YOU MUST STATE the exact word count on page one of your
assignment. WORDS IN EXCESS OF 1500 MAY NOT BE READ BY THE LECTURER.
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on
the following date:
Compulsory Assignment
Tuesday 12 July 2016
(Week 8)
5
ASSIGNMENT QUESTION
To obtain the Succession Assignment for the Winter Session 2016, please follow the
instructions below:
1.
Register online with the LEC (see page 26 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have access to all the facilities on the LEC
Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to
the assignment questions or problems for this subject.
6
PRESCRIBED TOPICS AND COURSE OUTLINE
This outline represents the basic structure of the course. You should regard the outline not as
confining or delimiting your study of this subject, but rather as an outline of the main principles which
make up the law of Succession. In preparation for your study of this subject, you should revise your
study of Equity, especially in relation to the topics of testamentary contracts, mutual wills, secret trusts,
powers and duties of trustees and trust powers.
Note: Paragraph numbers next to the cases listed refer to the Casebook.
1.
INTESTATE SUCCESSION
Casebook, ch 1
Text, ch 3
Re Fenwick & Re Charles [2009] NSWSC 530
(para. 3.55)
(2)
Knowledge and approval
Adoption Act, ss 95-97
Interpretation Act, s 21C
Status of Children Act, ss 5-8
Succession Act, ch 4
Astridge v Pepper [1970] 1 NSWLR 542 (para.
3.40)
Thornton v Brunsden (1956) 56 SR (NSW) 265
(para. 1.35)
Re Plaister (1934) 34 SR (NSW) 547 (para.
1.45)
Halbert v Mynar [1981] NSWLR 659 (para.
1.55)
Fulton v Andrew (1875) LR 7 HL 448 (para.
3.65)
Wingrove v Wingrove (1886) 11 P and D 81
(para. 3.90)
Hall v Hall (1868) 1 P and D 481 (para. 3.85)
Hindson v Weatherill (1854) 43 ER 886 (para.
3.75)
Wintle v Nye [1959] 1 All ER 552 (para. 3.80)
2.
(3)
DEFINITION AND NATURE OF A WILL
(4)
Casebook, ch 2
Text, ch 4, paras. 4.10-4.110, 4.160-4.370
Succession Act, s 6
3.
Fraud and undue influence
THE MENTAL ELEMENT
Casebook, ch 3
Text, ch 5
(1)
In the Estate of Knibbs [1962] 2 All ER 829
(para. 3.95)
King's Proctor v Daines (1830) 162 ER 1136
(para. 3.100)
Nichols v Nichols (1814) 161 ER 1113 (para.
3.105)
In the Estate of Meyer [1908] P 353 (para.
3.110)
Testamentary Capacity
4.
(a)
Casebook, ch 4
Text, ch 6
Age
Succession Act, ss 5, 16, 17 (cf former Wills
Probate and Administration Act, ss 6, 6A, 6B)
(b)
Lack of testamentary intention
Sound mind, memory and
understanding
Succession Act, ss 18-26
Banks v Goodfellow (1870) LR 5 QB 549
(para. 3.15)
Timbury v Coffee (1941) 66 CLR 277 (para.
3.25)
Bull v Fulton (1942) 66 CLR 295 (para. 3.20)
In the Estate of Bohrman [1938] 1 All ER 271
(para. 3.35)
Woodhead v Perpetual Trustee Co (1987) 11
NSWLR 267 (para. 3.30)
(1)
FORMAL REQUIREMENTS
Form and manner of execution of wills
Succession Act, ss 6, 7, 9 (cf former Wills
Probate and Administration Act, ss 7, 12)
In the Goods of Adams (1872) 2 P and D 367
(para. 4.25)
Re Male [1934] VLR 318 (para. 4.30)
Sweetland v Sweetland (1865) 164 ER 1416
(para. 4.35)
Willgoss v Ward (1921) 22 SR (NSW) 61
(para. 4.55)
(2)
Gifts to interested witnesses
7
Succession Act, s 10 (cf former Wills, Probate
and Administration Act, s 13)
Succession Act, s 11 (cf former Wills, Probate
and Administration Act, s 17)
Re Bunting [1974] 2 NZLR 219 (para. 4.60)
(3)
The judicial dispensing power
Succession Act, s 8 (cf former Wills Probate
and Administration Act, s 18A)
Re Application of Brown: Estate of Springfield
(1991) 23 NSWLR 535 (para. 4.75)
In the Estate of Masters (1994) 33 NSWLR
446 (para. 4.80)
(4)
(a)
By another will
Succession Act, s 11(1)(c) (cf former Wills
Probate and Administration Act, s 17(2))
In the Goods of Oswald (1874) LR 3 P and D
162 (para. 5.80)
In re Tait [1957] VR 405 (para. 5.85)
Re Mills (1968) 88 WN (pt 2) (NSW) 74 (para.
5.90)
Re Luck [1977] WAR 148 (para. 5.95)
Cadell v Wilcocks [1898] P 21 (para. 5.100)
Incorporation by reference
(b)
Allen v Maddock (1858) 14 ER 757 (para.
4.70)
By writing declaring an intention
to revoke
Succession Act, s 11(1)(d) (cf former Wills
Probate and Administration Act, s 17(3)(a))
5.
THE RECTIFICATION POWER
Casebook, ch 3, paras. 3.115-3.135
Text, ch 5, paras. 5.80-5.100; ch 10, paras.
10.10, 10.140-10.180
In the Goods of Fraser (1869) LR 2 P and D 40
(para. 5.120)
(c)
By destruction
Succession Act, ss 27-28 (cf former Wills
Probate and Administration Act, s 29A), 32
Succession Act, s 11(1)(e) (cf former Wills
Probate and Administration Act, s 17(3)(b))
Mortenson v State of New South Wales
(NSWCA, unrep, 12.12.1991) (para. 3.130)
Estate of Gillespie (NSWSC, unrep, 25.10.91)
(para. 3.135)
Cheese v Lovejoy (1877) LR 2 P 251 (para.
5.130)
Re Everest [1975] 2 WLR 333 (para. 5.140)
Doe v Perkes (1820) 106 ER 740 (para. 5.135)
In the Will of Boyd (1959) 59 SR (NSW) 369
(para. 5.145)
Guest v Webb [1965] VR 427 (para. 5.150)
6.
REVOCATION
Casebook, ch 5
Text, ch 7
(1)
(d)
Involuntary revocation
(a)
In the Goods of Russell (1890) 15 PD 111
(para. 5.35)
Layer v Burns Philp Trustee Co (1986) 6
NSWLR 60 (para. 5.60)
Re Natush [1963] NZLR 173 (para. 5.70)
(b)
Termination of marriage
Succession Act, s 13 (cf former Wills Probate
and Administration Act, s 15A)
(2)
Succession Act, s 11(1)(f) (cf former Wills
Probate and Administration Act, s 17(3)(c))
Marriage
Succession Act, s 12 (cf former Wills Probate
and Administration Act, s 15)
Voluntary revocation
By writing/dealing
(e)
Dependent relative revocation
Lippe v Hedderwick (1922) 31 CLR 148 (para.
5.25)
In the Estate of Southerden [1925] P 177
(para. 5.165)
Re Lindrea [1953] VLR 168 (para. 5.175)
In the Estate of Niven (1921) 21 SR (NSW)
702 (para. 5.170)
Re Jones [1976] 1 Ch 200 (para. 5.180)
Re Mills (1968) 88 WN (pt 2) (NSW) 74 (para.
5.90)
7.
ALTERATIONS
Casebook, ch 6
Text, ch 8
8
9.
Succession Act, ss 8, 11(1)(f), 14 (cf former
Wills Probate and Administration Act, ss
17(3)(c), 18, 18A)
Goods of Sykes (1873) 3 P and D 26 (para.
6.20)
Williams v Ashton (1860) 70 ER 685 (para.
6.25)
Goods of Hall (1871) LR 2 P and D 256 (para.
6.30)
Goods of Itter [1950] P 130 (para. 6.40)
Ffinch v Combe [1894] P 191 (para. 6.35)
8.
REPUBLICATION AND REVIVAL OF
WILLS
Casebook, ch 7
Text, ch 9
(1)
JURISDICTION OF THE PROBATE
COURT
Casebook, ch 8
Text, ch 14, paras. 14.10-14.60
Probate and Administration Act, ss 40, 40A,
40B, 40C, 40D, 41, 63, 74, 90
In the Goods of Morton (1864) 164 ER 1338
(para. 8.55)
In re Carlton [1924] VLR 237 (para. 8.50)
In the Goods of Tamplin [1897] P 39 (para.
8.60)
New York Breweries v A-G [1899] AC 62 (para.
8.70)
Boyd v Leslie [1964] VR 728 (para. 8.140)
10. ESTATES PENDING GRANTS OF
REPRESENTATION
Republication
(Former Wills Probate and Administration Act,
s 4)
Casebook, ch 9
Text, ch 13
Probate and Administration Act, ss 44, 61
Re Smith (1890) 45 Ch D 632 (para. 7.15)
Fairweather v Fairweather (1944) 69 CLR 121
(para. 7.20)
(2)
Revival
Succession Act, s 15 (cf former Wills Probate
and Administration Act, s 19)
(1)
Andrews v Hogan (1952) 86 CLR 223 (para.
9.20)
Oxford Meat Co v McDonald (1963) 63 SR
(NSW) 423 (para. 9.25)
(2)
Rogers v Goodenough (1862) 164 ER 1028
(para. 7.45)
In the Goods of Steele (1862) 1 P and D 575
(para. 7.50)
In the Estate of Horne (1920) 20 SR (NSW)
531 (para. 7.55)
In the Estate of Brian [1974] 2 NSWLR 231
(para. 7.65)
Position of NSW Trustee
Executor de son tort
Re Birch (1951) 51 SR (NSW) 345 (para. 9.35)
Cash v Nominal Defendant (1969) 90 WN (pt
1) (NSW) 77 (para. 9.40)
Will of Colless (1941) 41 SR (NSW) 133 (para.
10.45)
11. GRANTS OF REPRESENTATION
Casebook, ch 10
Text, ch 14, paras. 14.70-14.330
Bath v British and Malayan Trustees (1969) 90
WN (pt 1) (NSW) 44 (para. 10.55)
In the Will of Sands (1944) 44 SR (NSW) 281
(para. 10.60)
Bates v Messner (1967) 67 SR (NSW) 187
(para. 10.75)
Re Devoy [1943] St R Qd 137 (para. 10.40)
Re N [1950] VLR 139 (para. 10.70)
Bailey v Bailey (1924) 34 CLR 558 (para.
10.85)
Tyrrell v Painton [1894] P 151 (para. 10.90)
9
12. SOME POWERS AND DUTIES OF A
LEGAL PERSONAL REPRESENTATIVE
Casebook, ch 11
Text, ch 15, paras. 15.10-15.60, 15.90, 15.120,
15.220-15.240
(1)
Disposal of the body
Williams and Williams (1882) 20 Ch D 659
(para. 11.30)
(2)
Commencement and termination of the
authority of a legal personal
representative
The Daily Pty Ltd v White (1946) 63 WN
(NSW) 262 (para. 11.50)
Attenborough v Solomon [1913] AC 76 (para.
11.60)
Colyton Investments v McSorley (1962) 107
CLR 177 (para. 11.75)
(3)
13. GIFTS BY WILL
Casebook, ch 13
Text, ch 11, paras. 11.10-11.200, 11.24011.260, 11.390-11.400, 11-620-11.740
Succession Act, ss 30, 35, 39, 40, 41, 42 (cf
former Wills Probate and Administration Act, ss
21, 29)
Walford v Walford [1912] AC 658 (para. 13.25)
Re Clifford [1912] 1 Ch 29 (para. 13.50)
McBride v Hudson (1961) 107 CLR 604 (para.
13.35)
Re Rooke [1933] 1 Ch 970 (para. 13.70)
Re Collins' Will Trusts [1971] 1 WLR 37 (para.
13.75)
Re Plowright [1971] VR 128 (para. 13.40)
Permanent Trustee Co of New South Wales v
Royal Prince Alfred Hospital (1944) 45 SR
(NSW) 339 (para. 13.55)
In re Buckley's Trusts (1883) 22 Ch D 583
(para. 13.45)
Executor's commission
Class gifts and class closing rules
Probate and Administration Act, ss 85-86
In the Will of Wallace (1934) 51 WN (NSW) 84
(para. 11.215)
Dalrymple v Melville (1932) 32 SR (NSW) 596
(para. 11.110)
Sacks v Gridiger (1991) 22 NSWLR 502 (para.
11.195)
Re Murphy [1928] St R Qd 1 (para. 11.200)
In the Will of Sheppard [1972] 2 NSWLR 714
(para. 11.220)
Re Craig (1952) 52 SR (NSW) 265 (para.
11.205)
In the Will of Shannon [1977] 1 NSWLR 210
(para. 11.225)
(4)
Special pleas and immunities of
executors and administrators
Probate and Administration Act, ss 92, 92A,
93, 94
Newton v Sherry (1876) LR 1 CP 246 (para.
11.140)
In the Will of Walker (1943) 43 SR (NSW) 305
(para.11.150)
Re Owers: Public Trustee v Death [1941] 1 Ch
389 (para. 11.155)
Levy v Kum Chah (1936) 56 CLR 159 (para.
11.135)
Jervis v Wolfenstan (1874) LR 18 Eq 18 (para.
11.160)
Re Bleckly [1951] 1 All ER 1064 (see pp.10689) (para. 13.85)
14. ADMINISTRATION OF SOLVENT
ESTATES
(1)
The statutory order of application of
assets
Casebook, ch 16, paras 16.05, 16.20, 16.30,
16.50-16.55, 16.65, 16.80-16.85
Text, ch 15, paras 15.130, 15.170-15.210
Probate and Administration Act, s 46C(2); sch
3, pt 2
Re Tong [1931] 1 Ch 202 (para. 16.30)
Re John [1933] 1 Ch 370 (para. 16.80)
Re Sloan [1943] VLR 63 (para. 16.85)
Permanent Trustee Co of New South Wales v
Temple [1957] SR (NSW) 301 (para. 16.55)
Perpetual Trustee Co v Walker (1941) 41 SR
(NSW) 174 (para. 16.50)
Ebert v Healy (1969) 89 WN (pt 1) (NSW) 479
(para. 16.65)
Re McCallum (1907) 7 SR (NSW) 523 (para.
14.40)
(2)
Locke King's Act
Casebook, ch 15
Text, ch 15, para. 15.160
Conveyancing Act 1919 (NSW), s 145
10
Re Neeld [1962] 1 Ch 643 (para. 15.20)
Re Beirnstein [1925] 1 Ch 12 (para.15.35)
Re Fegan [1928] 1 Ch 45 (para. 15.25)
McPhie v Mackay [1975] 2 NSWLR 369 (para.
15.30)
Perpetual Trustee Co v Killick (1951) 51 SR
(NSW) 36 (para. 15.45)
Re Baron Kensington [1902] 1 Ch 203 (para.
15.50)
Re Fison's Will Trusts [1950] 1 Ch 395 (para.
15.55)
(3)
Payment of legacies
Casebook, ch 16, paras 16.105
Text, ch 15, para 15.170, at pp 301-302
(4)
Protected assets
Casebook, ch 14, para 14.05
Text, ch 15, para 15.140
Life Insurance Act 1995 (Cth), ss 204-205
15. FAMILY PROVISION
Casebook, ch 12
Text, ch 12
Interpretation Act, s 21C
Succession Act, Ch 3 (cf former Family
Provision Act)
Roy v Sturgeon (1986) 11 NSWLR 454 (para
12.20)
Simonis v Perpetual Trustee Co Ltd (1987) 21
NSWLR 677 (para 12.25)
Ball v Newey (1988) 13 NSWLR 489 (para.
12.35)
Benney v Jones (1991) 23 NSWLR 559
(para.12.40)
Petrohilos v Hunter (1991) 25 NSWLR 343
(para. 12.45)
Vanvalen v Neaves [2005] NSWSC 593 (para
12.50)
Ye v Fung [2006] NSWSC 243 (para 12.55)
Fung v Ye [2007] NSWCA 115 (para 12.60)
Singer v Berghouse (No 2) (1994) 181 CLR
201 (para. 12.65)
Bosch v Perpetual Trustee Co [1938] AC 463
(para. 12.70)
Permanent Trustee Co v Fraser (1995) 36
NSWLR 24 (para. 12.75)
Vigolo v Bostin (2005) 221 CLR 191 (para
12.80)
Re Fulop (1987) 8 NSWLR 679 (para. 12.85)
Churton v Christian (1988) 13 NSWLR 241
(para. 12.90)
Dijkhuijs v Barclay (1988) 13 NSWLR 639
(para. 12.95)
Palmer v Dolman [2005] NSWCA 361 (para
12.100)
Re Buckland [1966] VR 404 (para. 12.105)
King v White [1992] 2 VR 417 (para. 12.110)
Gorton v Parks (1989) 17 NSWLR 1 (para.
12.115)
Wade v Harding (1987) 11 NSWLR 551 (para.
12.130)
Cetojevic v Cetojevic [2007] NSWCA 33 (para
12.135)
Luciano v Rosenblum (1985) 2 NSWLR 65
(para. 12.125)
11
STATUTORY EXTRACTS
Conveyancing Act 1919 (NSW)
Part 12 Debts charged on property of deceased
145 Charges on property of deceased to be paid primarily out of the property charged
(1) Where a person dies after the commencement of the Conveyancing (Amendment)
Act 1930 possessed of or entitled to, or, under a general power of appointment by
his or her will disposes of:
(a) property, which at the time of his or her death is charged with the payment
of money, whether by way of legal mortgage, equitable charge, or otherwise
(including a lien for unpaid purchase money), or
(b) land in respect of which there is owing at the time of his or her death any
money under a contract of purchase whether from the Crown or not, and the
deceased has not by will, deed, or other document signified a contrary or
other intention, the property so charged shall, as between the different
persons claiming through the deceased, be primarily liable for the payment
of the charge; and every part of the property, according to its value, shall
bear a proportionate part of the charge on the whole thereof.
(2) Such contrary or other intention shall not be deemed to be signified:
(a) by a general direction for the payment of debts or of all the debts of the
testator out of the testator's personal estate or the testator's residuary real and
personal estate, or the testator's residuary real estate, or
(b) by a charge of debts upon any such estate, unless such intention is further
signified by words expressly or by necessary implication referring to all or
some part of the charge.
(3) Nothing in this section affects the right of a person entitled to the charge to obtain
payment or satisfaction thereof either out of the other assets of the deceased or
otherwise.
Adoption Act 2000 (NSW)
95
General effect of adoption orders
(cf AC Act s 35 (1) and (4))
(1)
An adoption order made by the Court gives sole parental responsibility for a child to the person
or persons named in the order (the adoptive parent or adoptive parents).
(2)
For the purposes of the law of New South Wales, if an adoption order is made:
(a) the adopted child has the same rights in relation to the adoptive parent, or adoptive
parents, as a child born to the adoptive parent or adoptive parents,
(b) the adoptive parent or adoptive parents have the same parental responsibility as the parent
or parents of a child born to the adoptive parent or adoptive parents,
(c) the adopted child is regarded in law as the child of the adoptive parent or adoptive parents
and the adoptive parent or adoptive parents are regarded in law as the parents of the
adopted child,
(d) the adopted child ceases to be regarded in law as the child of the birth parents and the
birth parents cease to be regarded in law as the parents of the adopted child.
Note. For example, for the purposes of a distribution on intestacy, an adopted child is regarded as a
child of the adoptive parent or parents and the child’s family relationships are determined accordingly.
12
See section 109 of the Succession Act 2006.
(3)
Despite subsection (1), an adopted child does not cease to be regarded in law as the child of a
birth parent or adoptive parent, and the birth parent or adoptive parent does not cease to be
regarded in law as the parent of the child, if an adoption order is made in relation to a step
parent with whom the birth parent or adoptive parent is living.
(4)
For the purposes of any law of New South Wales relating to a sexual offence (being a law for
which the relationship between persons is relevant), any relationship that would have existed if
an adoption order or discharge order had not been made continues to exist for the purposes of
that law in addition to any relationship that exists under this section by virtue of the order.
96
Effect of adoption order on parental responsibility and previous adoption
(cf AC Act s 35 (1) (d) and (e))
(1)
On the making of an adoption order:
(a) the existing parental responsibility for the adopted child (including the Minister’s parental
responsibility under the Children and Young Persons (Care and Protection) Act 1998)
ceases to have effect, and
(b) any previous adoption of the child (whether effected under the law of New South Wales
or otherwise) ceases to have effect.
(2)
This section does not apply in relation to an agreement or instrument (not being a disposition of
property) made or executed before 7 February 1967.
Note. 7 February 1967 was the date of commencement of the Adoption of Children Act 1965.
97 Effect of orders as regards property
(cf AC Act ss 35 (2) and (3) and 36)
(1)
Section 95 does not have effect so as to deprive an adopted child of any vested or contingent
property right acquired by the child before the making of the adoption order.
(2)
(Repealed)
Status of Children Act 1996 (NSW)
Part 2
5
Status of children and dispositions of property
All children are of equal status
(1) For the purposes of any law of the State by or under which the relationship
between any person and the person's father and mother (or either of them) arises,
that relationship and any other relationship (whether of consanguinity or affinity)
between the person and another person is to be determined regardless of whether
the person's parents are or have been married to each other.
(2) This section is subject to sections 6 and 7.
13
6 Construction of dispositions of property made on or after 1 July 1977
(1) This section applies to the following dispositions only:
(a) dispositions made inter vivos on or after 1 July 1977 (being the date on
which the Children (Equality of Status) Act 1976 commenced),
(b) dispositions made by will or codicil executed before, on or after 1 July 1977
by a person who dies after that date.
(2) Unless a contrary intention appears, in any disposition to which this section
applies:
(a) a reference (however expressed) to the child or children of a person includes
a reference to an exnuptial child of whom that person is a parent, and
(b) a reference (however expressed) to any person or persons related to another
person (other than as a parent or child) includes a reference to anyone who is
so related in fact regardless that the person related in fact, or some other
person through whom the relationship is traced, is or was an exnuptial child.
(3) The use of any of the following words (or of any word or words having the same
or a similar meaning) does not of itself indicate a contrary intention for the
purposes of subsection (2):
(a) the words ``legitimate'' or ``lawful'' when used with reference to the child or
children of a person or persons related to another person in some other way,
(b) the words ``married'', ``husband'' or ``wife'' when used with reference to the
parent or parents of a person.
(4) Without limiting any other provision of this Act, any rule of law that a disposition
in favour of an exnuptial child not conceived or born when the disposition takes
effect is void as being contrary to public policy is abolished in respect of any
disposition to which this section applies.
7
Construction of dispositions of property made before 1 July 1977
(1) The following dispositions are to be construed as if the Children (Equality of
Status) Act 1976 and this Act had not been enacted:
(a) dispositions made inter vivos before 1 July 1977,
(b) dispositions made by will or codicil executed by a person who died before 1
July 1977.
(2) If any such disposition contains a special power of appointment, nothing in this
Act:
(a) extends the class of persons in whose favour the appointment may be made,
or
(b) causes the exercise of the power to be construed so as to include any person
who is not a member of that class.
8
Rights of exnuptial children and their relatives on intestacy
(1) This section applies to rights under the intestacy of persons dying on or after 1 July
1977.
(2) If any relative of an exnuptial child (including a parent of the child) dies intestate
in respect of all or any of the relative's real or personal property, the child (or any
of the child's issue if the child is dead) is entitled to take any interest in that
property that the child (or the child's issue) would have been entitled to take if the
child's parents had been married to each other when the child was born.
14
(3) If an exnuptial child dies intestate in respect of all or any of the child's real or
personal property, any relative of the child (including a parent of the child) is
entitled to take any interest in that property that the relative would have been
entitled to take if the parents of the child had been married to each other when the
child was born.
(4) Nothing in this section affects the generality of section 5. However, this section
does not (despite section 5) apply to any child who is an adopted person under an
adoption order made or continued in force under the Adoption of Children Act
1965 or under an adoption recognised in the State under Part 5 of that Act.
Interpretation Act 1987 (NSW)
21C References to de facto partners and de facto relationships
(1)
Meaning of “de facto partner”
For the purposes of any Act or instrument, a person is the de facto partner of another person
(whether of the same sex or a different sex) if:
(a)
the person is in a registered relationship or interstate registered relationship with the
other person within the meaning of the Relationships Register Act 2010, or
(b)
the person is in a de facto relationship with the other person.
(2)
Meaning of “de facto relationship”
For the purposes of any Act or instrument, a person is in a de facto relationship with another
person if:
(a)
they have a relationship as a couple living together, and
(b)
they are not married to one another or related by family.
A de facto relationship can exist even if one of the persons is legally married to someone else or
in a registered relationship or interstate registered relationship with someone else.
(3)
Determination of “relationship as a couple”
In determining whether 2 persons have a relationship as a couple for the purposes of subsection
(2), all the circumstances of the relationship are to be taken into account, including any of the
following matters that are relevant in a particular case:
(a)
the duration of the relationship,
(b)
the nature and extent of their common residence,
(c)
whether a sexual relationship exists,
(d)
the degree of financial dependence or interdependence, and any arrangements for
financial support, between them,
(e)
the ownership, use and acquisition of property,
(f)
the degree of mutual commitment to a shared life,
(g)
the care and support of children,
(h)
the performance of household duties,
(i)
the reputation and public aspects of the relationship.
No particular finding in relation to any of those matters is necessary in determining whether 2
persons have a relationship as a couple.
(4)
Meaning of “related by family”
For the purposes of subsection (2), 2 persons are related by family if:
(a)
one is the child (including an adopted child) of the other, or
(b)
one is another descendant of the other (even if the relationship between them is traced
through an adoptive parent), or
(c)
they have a parent in common (including an adoptive parent of either or both of
them).
15
This subsection applies:
(a)
even if an adoption has been declared void or is of no effect, and
(b)
to adoptions under the law of any place (whether in or out of Australia) relating to the
adoption of children.
Relationships Register Act 2010
Part 2 Registration of relationships
4
(1)
(2)
5
Definitions
In this Act:
adult means a person of or above the age of 18 years.
corresponding law means a law of another State or a Territory providing for the registration of
or recognition of relationships that is prescribed by the regulations.
interstate registered relationship—see section 16.
Register means the Register established under the Births, Deaths and Marriages Registration
Act 1995.
registered relationship means a relationship that is registered under this Act.
Registrar means the Registrar of Births, Deaths and Marriages within the meaning of the Births,
Deaths and Marriages Registration Act 1995.
Notes included in this Act do not form part of this Act.
Eligibility for registration
(1) Two adults who are in a relationship as a couple, regardless of their sex, may apply to the
Registrar for registration of their relationship.
(2) A relationship cannot be registered unless at least one of the adults resides in New South Wales.
(3)
A relationship cannot be registered if:
(a) either adult is married, or
(b) either adult is registered under this Act or a corresponding law as being in a registered
relationship or an interstate registered relationship, or
(c) either adult is in a relationship as a couple with another person, or
(d) the adults are related by family.
(4)
Two adults are related by family if:
(a) one is the child (including an adopted child) of the other, or
(b) one is another descendant of the other (even if the relationship between them is traced
through an adoptive parent), or
(c) they have a parent in common (including an adoptive parent of either or both of them).
(5)
Subsection (4) applies:
(a) even if an adoption has been declared void or is of no effect, and
(b) to adoptions under the law of any place (whether in or out of Australia) relating to the
adoption of children.
6
Applications for registration
An application for registration of a relationship is to be made in the form approved by the Registrar
and must be accompanied by the following:
16
(a)
(b)
(c)
(d)
a statutory declaration by each person in the relationship stating the following:
(i)
that the person wishes to register the relationship,
(ii)
that the person is in a relationship as a couple with the other person,
(iii)
that the person is not married,
(iv)
that the person is not registered under this Act or a corresponding law as being in a
registered relationship or an interstate registered relationship,
(v)
that the person is not in a relationship as a couple with a person other than the other
applicant,
(vi)
that the person does or does not reside in New South Wales,
(vii)
that the person is not related to the other applicant by family,
evidence of the identity and age of each person in the relationship,
the fee prescribed by the regulations,
any other documents and information prescribed by the regulations.
Part 3 End of registration of relationships
10 Revocation of registration by events
The registration of a registered relationship is revoked in the following circumstances:
(a)
on the death of a person in the relationship,
(b)
on the marriage of a person in the relationship.
11
Applications for revocation of registration by parties
(1)
One or both persons in a registered relationship may apply to the Registrar to revoke the
registration of the relationship.
(2)
The application is to be in the form approved by the Registrar and to be accompanied by the
following:
(a) a statutory declaration by at least one of the persons stating that the person wishes to
revoke the registration,
(b) if only one person makes the application, proof of service of notice of the application on
the other person and particulars of that notice,
(c) the fee prescribed by the regulations,
(d) any other documents and information prescribed by the regulations.
(3)
The Registrar may dispense with the obligation to give notice of the application to the other
person, or approve alternative means of giving notice, if the Registrar is satisfied that it is not
reasonably practicable to give notice of the application in the manner required by or under this
Act.
Part 4 Miscellaneous
16 Recognition of interstate registered relationships
The regulations may declare that a class of relationships registered or recognised under a
corresponding law are interstate registered relationships for the purposes of this Act.
17
Succession Act 2006
CHAPTER 1 – PRELIMINARY
3 Definitions
(1)
In this Act:
administration of the estate of a deceased person is defined in section 55.
administrator has the same meaning as it has in the Probate and Administration Act 1898.
close personal relationship is defined in subsection (3).
costs, in relation to proceedings under this Act, means costs payable in or in relation to the
proceedings, and includes fees, disbursements, expenses and remuneration.
Court means:
(a) the Supreme Court, in relation to any matter (including a matter referred to in paragraph
(b)), or
(b) the District Court, in relation to a matter under Chapter 3 for which it has jurisdiction
under section 134 of the District Court Act 1973.
deceased person includes any person in respect of whose estate administration has been
granted.
deceased transferee means a deceased transferee referred to in section 81 or 82.
disposition includes the following:
(a)
any gift, devise or bequest of property under a will,
(b)
the creation by will of a power of appointment affecting property,
(c)
the exercise by will of a power of appointment affecting property.
document:
(a) except as provided by paragraph (b)—has the same meaning that it is given by section 21
of the Interpretation Act 1987, and
(b) in Chapter 2 (other than section 8)—means any paper or material on which there is
writing.
domestic relationship has the same meaning as it has in the Property (Relationships) Act 1984.
eligible person means a person who may make an application for a family provision order under
section 57.
family provision order means an order made by the Court under Chapter 3 in relation to the
estate or notional estate of a deceased person to provide from that estate for the maintenance,
education or advancement in life of an eligible person.
intestate is defined in section 102.
legal representative of an estate is defined in section 55 (2).
notional estate of a deceased person means property designated by a notional estate order as
notional estate of the deceased person.
notional estate order means an order made by the Court under Chapter 3 designating property
specified in the order as notional estate of a deceased person.
personal representative means the executor or administrator of the estate of a deceased person.
property includes any valuable benefit.
Registrar means a person who is:
(a)
appointed in accordance with section 120 of the Supreme Court Act 1970, and
(b)
nominated by the Principal Registrar of the Court for the purposes of this Act.
will includes a codicil and any other testamentary disposition.
Note. The Interpretation Act 1987 contains definitions of some terms and expressions used in this Act.
18
See, for example, the definitions of minor, land and property in section 21 of that Act.
(2)
A reference in this Act to a child or issue of any person includes a child or issue who is born
after the person’s death after a period of gestation in the uterus that commenced before the
person’s death and survives the person for at least 30 days after birth.
(3)
For the purposes of this Act, a close personal relationship is a close personal relationship (other
than a marriage or a de facto relationship) between two adult persons, whether or not related by
family, who are living together, one or each of whom provides the other with domestic support
and personal care.
(4)
For the purposes of subsection (3), a close personal relationship is taken not to exist between
two persons where one of them provides the other with domestic support and personal care:
(a)
or fee and reward, or
(b)
on behalf of another person or an organisation (including a government or government
agency, a body corporate or a charitable or benevolent organisation).
(5)
Notes included in this Act do not form part of this Act.
Note. References in headings to sections of this Act to “WPA” are references to the Wills, Probate
and Administration Act 1898 as in force before it was amended by this Act. References in headings to
sections of this Act to “FPA” are references to the Family Provision Act 1982 as in force immediately
before it was repealed by the Succession Amendment (Family Provision) Act 2008.
CHAPTER 2 – WILLS
Division 1 Making a will
5
Minimum age for making a will
(cf WPA 6 and 6B)
(1)
A will made by a minor is not valid.
(2)
Despite subsection (1):
(a) a minor may make a will in contemplation of marriage (and may alter or revoke such a
will) but the will is of no effect if the marriage contemplated does not take place, and
(b) a minor who is married may make, alter or revoke a will, and
(c) a minor who has been married may revoke the whole or any part of a will made while
the minor was married or in contemplation of that marriage.
(3) Subsection (1) does not apply to a will made by an order under section 16 (Court may authorise
minor to make, alter or revoke a will).
Division 2 Executing a will
6
(1)
How should a will be executed?
(cf WPA 7 and 9)
A will is not valid unless:
(a) it is in writing and signed by the testator or by some other person in the presence of and at
the direction of the testator, and
(b) the signature is made or acknowledged by the testator in the presence of 2 or more
witnesses present at the same time, and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not
19
necessarily in the presence of each other).
(2)
The signature of the testator or of the other person signing in the presence and at the direction of
the testator must be made with the intention of executing the will, but it is not essential that the
signature be at the foot of the will.
(3)
It is not essential for a will to have an attestation clause.
(4)
If a testator purports to make an appointment by his or her will in the exercise of a power of
appointment by will, the appointment is not valid unless the will is executed in accordance with
this section.
(5)
If a power is conferred on a person to make an appointment by a will that is to be executed in
some particular way or with some particular solemnity, the person may exercise the power by a
will that is executed in accordance with this section, but is not executed in the particular way or
with the particular solemnity.
(6) This section does not apply to a will made by an order under section 18 (Court may authorise a
will to be made, altered or revoked for a person without testamentary capacity).
Division 3 Dispensing with requirements for execution, alteration or revocation of a will
8
When may the Court dispense with the requirements for execution, alteration or revocation
of wills?
(cf WPA 18A)
(1)
This section applies to a document, or part of a document, that:
(a)
purports to state the testamentary intentions of a deceased person, and
(b)
has not been executed in accordance with this Part.
(2)
The document, or part of the document, forms:
(a)
the deceased person’s will—if the Court is satisfied that the person intended it to form
his or her will, or
(b)
an alteration to the deceased person’s will—if the Court is satisfied that the person
intended it to form an alteration to his or her will, or
(c)
a full or partial revocation of the deceased person’s will—if the Court is satisfied that
the person intended it to be a full or partial revocation of his or her will.
(3)
In making a decision under subsection (2), the Court may, in addition to the document or part,
have regard to:
(a)
any evidence relating to the manner in which the document or part was executed, and
(b)
any evidence of the testamentary intentions of the deceased person, including evidence
of statements made by the deceased person.
(4)
Subsection (3) does not limit the matters that the Court may have regard to in making a decision
under subsection (2).
(5)
This section applies to a document whether it came into existence within or outside the State.
Division 4 Witnessing a will
9
Persons who cannot act as witnesses to wills
(cf WPA 12)
20
A person who is unable to see and attest that a testator has signed a document may not act as a witness
to a will.
10 Can an interested witness benefit from a disposition under a will?
(cf WPA 13)
(1) This section applies if a beneficial disposition is given or made by will to a person (the interested
witness) who attests the execution of the will.
(2) The beneficial disposition is void to the extent that it concerns the interested witness or a person
claiming under the interested witness.
(3)
A beneficial disposition is not void under subsection (2) if:
(a) at least 2 of the people who attested the execution of the will are not interested witnesses,
or
(b) all the persons who would benefit directly from the avoidance of the disposition consent
in writing to the distribution of the disposition under the will and have the capacity to
give that consent, or
(c) the Court is satisfied that the testator knew and approved of the disposition and it was
given or made freely and voluntarily by the testator.
Note. Consent under section 10 (3) (b) is not liable to duty. See section 65 (12A) of the Duties Act
1997.
(4)
In this section:
beneficial disposition does not include a charge or direction for the payment of:
(a) a debt, or
(b) reasonable remuneration to an executor, administrator, legal practitioner or other person
acting in relation to the administration of the testator’s estate.
Division 5 Revocation, alteration and revival of a will
11 When and how can a will be revoked?
(cf WPA 16 and 17)
(1)
The whole or any part of a will may be revoked but only:
(a) if the revocation (whether by a will or other means) is authorised by an order under
section 16 or 18, or
(b) by the operation of section 12 or 13, or
(c) by a later will, or
(d) by some writing declaring an intention to revoke it, executed in the manner in which a
will is required to be executed by this Act, or
(e) by the testator, or by some person in his or her presence and by his or her direction,
burning, tearing or otherwise destroying the will with the intention of revoking it, or
(f)
by the testator, or by some person in his or her presence and at his or her direction,
writing on the will or dealing with the will in such a manner that the Court is satisfied
from the state of the will that the testator intended to revoke it.
(2) No will or part of a will may be revoked by any presumption of an intention on the ground of an
alteration in circumstances.
12 Effect of marriage on a will
(cf WPA 15)
(1)
A will is revoked by the marriage of a testator.
21
(2)
Despite subsection (1), the following are not revoked by the marriage of the testator:
(a) a disposition to the person to whom the testator is married at the time of his or her death,
(b) an appointment as executor, trustee, advisory trustee or guardian of the person to whom
the testator is married at the time of his or her death,
(c) a will made in the exercise of a power of appointment if the property in relation to which
the appointment is exercised would not pass to the executor, administrator or NSW
Trustee and Guardian if the power of appointment was not exercised.
(3)
A will made in contemplation of a particular marriage, whether or not that contemplation is
expressed in the will, is not revoked by the solemnisation of the marriage concerned.
(4) A will that is expressed to be made in contemplation of marriage generally is not revoked by the
solemnisation of a marriage of the testator.
13 What is the effect of divorce or an annulment on a will?
(cf WPA 15A)
(1)
(2)
The divorce of a testator or annulment of his or her marriage revokes:
(a) a beneficial disposition to the testator’s former spouse made by a will in existence at the
time of the divorce or annulment, and
(b) an appointment of the testator’s former spouse as an executor, trustee, advisory trustee or
guardian made by the will, and
(c) a grant made by the will of a power of appointment exercisable by, or in favour of, the
testator’s former spouse.
Subsection (1) does not apply if a contrary intention appears in the will.
(3)
The divorce of a testator or the annulment of his or her marriage does not revoke:
(a) the appointment of the testator’s former spouse as trustee of property left by the will on
trust for beneficiaries that include the former spouse’s children, or
(b) the grant of a power of appointment exercisable by the testator’s former spouse
exclusively in favour of the children of whom both the testator and the former spouse are
the parents.
(4)
If a disposition, appointment or grant is revoked by this section, the will takes effect in respect
of the revocation as if the testator’s former spouse had died before the testator.
(5)
Nothing in this section affects:
(a) any right of the former spouse of a testator to make any application under Chapter 3 of
this Act, or
(b) any direction, charge, trust or provision in the will of a testator for the payment of any
amount in respect of a debt or liability (including any liability under a promise) of the
testator to the former spouse of the testator or to the executor or the administrator of the
estate of the former spouse.
(6)
In this section:
annulment, in relation to a testator, means:
(a)
(b)
the annulment of the testator’s marriage by the Family Court of Australia, or
the annulment of the testator’s marriage under a law of a place outside Australia, if the
annulment is recognised in Australia under the Family Law Act 1975 of the
Commonwealth.
divorce means the ending of a marriage by:
(a) a divorce order in relation to the marriage taking effect under the Family Law Act 1975 of
the Commonwealth, or
22
(b)
(c)
a decree of nullity in respect of the marriage by the Family Court of Australia, or
the dissolution of the marriage in accordance with the law of a place outside Australia, if
the dissolution is recognised in Australia under the Family Law Act 1975 of the
Commonwealth.
spouse includes a party to a purported or void marriage.
testator’s former spouse means the person who was the testator’s spouse immediately before
the testator’s marriage was ended by divorce or annulment.
14 How a will may be altered
(cf WPA 18)
(1)
An alteration to a will after it has been executed is not effective unless the alteration:
(a)
is executed in the manner in which a will is required to be executed under this Part, or
(b) is made by a minor by the authority of an order of the Court under section 16 and is
executed in accordance with, and satisfies the requirements for such a will set out in,
section 16 (5), or
(c) is made for and on behalf of a person who does not have testamentary capacity by the
authority of an order under section 18 and satisfies the requirements for such a will set
out in section 23.
(2)
Subsection (1) does not apply to an alteration to a will made by or at the direction of the testator,
or signed by the Registrar under section 23, if the words or effect of the will are no longer
apparent because of the alteration.
(3)
If a will is altered, it is sufficient compliance with the requirements for execution if the
signatures of the testator and of the witnesses to the alteration are made:
(a) in the margin, or on some other part of the will beside, near or otherwise relating to the
alteration, or
(b) as authentication of a memorandum referring to the alteration and written on the will.
Note. Section 21 of the Interpretation Act 1987 defines sign to include making a mark.
15
How a revoked will may be revived
(cf WPA 19)
(1)
A will or part of a will that has been revoked is revived by re-execution or by execution of a will
showing an intention to revive the will or part.
(2)
A revival of a will that was partly revoked and later revoked as to the balance only revives that
part of the will most recently revoked.
(3)
Subsection (2) does not apply if a contrary intention appears in the reviving will.
(4)
A will that has been revoked and is later wholly or partly revived is taken to have been executed
on the day on which the will is revived.
Division 1 Wills by minors
16 Court may authorise minor to make, alter or revoke a will
(cf WPA 6A)
(1)
The Court may make an order authorising a minor:
(a)
to make or alter a will in the specific terms approved by the Court, or
(b)
to revoke a will or part of a will.
23
(2)
(3)
An order under this section may be made on the application of a minor or by a person on behalf
of the minor.
The Court may impose such conditions on the authorisation as the Court thinks fit.
(4)
Before making an order under this section, the Court must be satisfied that:
(a) the minor understands the nature and effect of the proposed will or alteration or
revocation of the will or part of the will and the extent of the property disposed of by it,
and
(b) the proposed will or alteration or revocation of the will or part of the will accurately
reflects the intentions of the minor, and
(c) it is reasonable in all the circumstances that the order should be made.
(5)
A will is not validly made, altered or revoked, in whole or in part, as authorised by an order
under this section unless:
(a) in the case of the making or alteration of a will (in whole or in part)—the will or
alteration is executed in accordance with the requirements of Part 2.1, and
(b) in the case of a revocation of a will (in whole or in part):
(i)
if made by a will—the will is executed in accordance with the requirements of Part
2.1, and
(ii) if made by other means—is made in accordance with the requirements of the order,
and
(c) in addition to the requirements of Part 2.1, one of the witnesses to the making or
alteration of the will under this section is the Registrar, and
(d) the conditions of the authorisation (if any) are complied with.
(6)
A will that is authorised to be made, altered or revoked in part by an order under this section
must be deposited with the Registrar under Part 2.5.
(7)
A failure to comply with subsection (6) does not affect the validity of the will.
Division 2 Court authorised wills for persons who do not have testamentary capacity
18 Court may authorise a will to be made, altered or revoked for a person without
testamentary capacity
(1)
The Court may, on application by any person, make an order authorising:
(a) a will to be made or altered, in specific terms approved by the Court, on behalf of a
person who lacks testamentary capacity, or
(b) a will or part of a will to be revoked on behalf of a person who lacks testamentary
capacity.
Note. A person may only make an application for an order if the person has obtained the leave of the
Court—see section 19.
(2)
An order under this section may authorise:
(a) the making or alteration of a will that deals with the whole or part of the property of the
person who lacks testamentary capacity, or
(b) the alteration of part only of the will of the person.
(3)
The Court is not to make an order under this section unless the person in respect of whom the
application is made is alive when the order is made.
(4)
The Court may make an order under this section on behalf of a person who is a minor and who
lacks testamentary capacity.
24
(5)
In making an order, the Court may give any necessary related orders or directions.
Note. The power of the Court to make orders includes a power to make orders on such terms and
conditions as the Court thinks fit—see section 86 of the Civil Procedure Act 2005. The Court also has
extensive powers to make directions under sections 61 and 62 of that Act.
(6)
A will that is authorised to be made or altered by an order under this section must be deposited
with the Registrar under Part 2.5.
(7)
A failure to comply with subsection (6) does not affect the validity of the will.
Division 3 Rectification of wills by Court
27 Court may rectify a will
(cf WPA 29A)
(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the
Court is satisfied the will does not carry out the testator’s intentions because:
(a) a clerical error was made, or
(b) the will does not give effect to the testator’s instructions.
(2) A person who wishes to make an application for an order under this section must apply to the
Court within 12 months after the date of the death of the testator.
(3) However, the Court may, at any time, extend the period of time for making an application
specified in subsection (2) if:
(a) the Court considers it necessary, and
(b) the final distribution of the estate has not been made.
28 Protection of personal representatives who distribute as if will had not been rectified
(cf WPA 29A)
(1)
This section applies if:
(a) a will is rectified under section 27, and
(b) a personal representative made a distribution to a beneficiary as if the will had not been
rectified.
(2)
A personal representative is not liable if:
(a) the distribution was made under section 92A (Personal representatives may make
maintenance distributions within 30 days) of the Probate and Administration Act 1898, or
(b) the distribution was made at least 6 months after the date of the death of the testator and
at the time of making the distribution the personal representative was not aware of an
application in respect of the estate having been made under section 27 or under Chapter 3,
and the personal representative has complied with the requirements of section 92 (Distribution of
assets after notice given by executor or administrator) of the Probate and Administration Act 1898.
Division 1 General rules about construction of wills
30
(1)
When a will takes effect
(cf WPA 21)
A will takes effect, with respect to the property disposed of by the will, as if it had been
25
executed immediately before the death of the testator.
(2)
This section does not apply if a contrary intention appears in the will.
31 Effect of failure of a disposition
(cf WPA 22)
(1)
If, and to the extent that, a disposition of property under a will is ineffective wholly or in part,
the will takes effect as if the property or undisposed part of the property were part of the
residuary estate of the testator.
(2)
This section does not apply if a contrary intention appears in the will.
(3)
In this section:
disposition of property does not include the exercise of a power of appointment.
32
Use of extrinsic evidence to construe wills
(1)
In proceedings to construe a will, evidence (including evidence of the testator’s intention) is
admissible to assist in the interpretation of the language used in the will if the language makes
the will or any part of the will:
(a)
meaningless, or
(b)
ambiguous on the face of the will, or
(c)
ambiguous in the light of the surrounding circumstances.
(2)
Despite subsection (1), evidence of the testator’s intention is not admissible to establish any of
the circumstances mentioned in subsection (1) (c).
(3)
Despite subsection (2), nothing in this section prevents evidence that is otherwise admissible at
law from being admissible in proceedings to construe a will.
33
Effect of a change in testator’s domicile
(cf WPA 32F)
The construction of a will is not altered because of a change in the testator’s domicile after executing
the will.
34
Income on contingent, future or deferred dispositions
A contingent, future or deferred disposition of property, whether specific or residuary, includes any
intermediate income of the property that has not been disposed of by will.
35
Beneficiaries must survive testator by 30 days
(1)
If a disposition of property is made to a person who dies within 30 days after the testator’s
death, or, if that or another period for survival appears in the will, within the period appearing in
the will, the will is to take effect as if the person had died immediately before the testator.
(2)
This section does not apply if a contrary intention appears in the will.
(3)
A general requirement or condition that a beneficiary survive the testator does not indicate a
contrary intention for the purposes of this section.
26
Division 2 Construction of particular provisions in wills
39
How dispositions to issue operate
A disposition to a person’s issue, without limitation as to remoteness, must be distributed to that
person’s issue in the same way as the person’s estate would be distributed if that person had died
intestate leaving only issue surviving.
40
How are requirements to survive with issue construed?
(cf WPA 25)
(1)
If a disposition to a person is expressed to fail if there is:
(a) a want or failure of issue of that person either in his or her lifetime or at his or her death,
or
(b) an indefinite failure of issue of that person,
the words used are to be construed to mean a want or failure of issue in the person’s lifetime or at the
person’s death and not an indefinite failure of his or her issue.
(2)
41
This section does not apply if a contrary intention appears in the will, except where the result
would be to cause a failure of the disposition.
Dispositions not to fail because issue have died before testator
(cf WPA 29)
(1)
This section applies if:
(a) a testator makes a disposition of property to a person, whether as an individual or as a
member of a class, who is issue of the testator (the original beneficiary), and
(b) under the will, the interest of the original beneficiary in the property does not come to an
end on or before the original beneficiary’s death, and
(c)
the disposition is not a disposition of property to the testator’s issue, without limitation as
to remoteness, and
(d) the original beneficiary does not survive the testator for 30 days or, if that or another
period for survival appears in the will, for the period appearing in the will.
(2)
The issue of the original beneficiary who survive the testator for 30 days or, if that or another
period for survival appears in the will, for the period appearing in the will, take the original
beneficiary’s share of the property in place of the original beneficiary as if the original
beneficiary had died intestate leaving only issue surviving.
(3)
Subsection (2) does not apply if a contrary intention appears in the will.
(4)
(Repealed)
(5)
A gift to persons as joint tenants on its own indicates a contrary intention for the purposes of
subsection (3).
42
Construction of residuary dispositions
(1)
A disposition of all, or the residue, of the estate of a testator that refers only to the real estate of
the testator, or only to the personal estate of the testator, is to be construed to include both the
real and personal estate of the testator.
(2)
If a part of a disposition in fractional parts of all, or the residue, of the testator’s estate fails, the
part that fails passes to the part that does not fail, and, if there is more than one part that does not
fail, to all those parts proportionally.
27
(3)
This section does not apply if a contrary intention appears in the will.
CHAPTER 3 – FAMILY PROVISION
Part 3.2 Family provision orders
Division 1 Applications for family provision orders
57
Eligible persons
(cf FPA 6 (1), definition of “eligible person”)
(1)
The following are eligible persons who may apply to the Court for a family provision order in
respect of the estate of a deceased person:
(a) a person who was the wife or husband of the deceased person at the time of the deceased
person’s death,
(b) a person with whom the deceased person was living in a de facto relationship at the time
of the deceased person’s death,
(c) a child of the deceased person,
(d) a former wife or husband of the deceased person,
(e) a person:
(i)
who was, at any particular time, wholly or partly dependent on the deceased
person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any
other time, a member of the household of which the deceased person was a
member,
(f)
a person with whom the deceased person was living in a close personal relationship at the
time of the deceased person’s death.
Note. Section 60 sets out the matters that the Court may consider when determining whether to make a family
provision order, and the nature of any such order. An application may be made by a tutor (within the meaning of
the Civil Procedure Act 2005) for an eligible person who is under legal incapacity.
Note. “De facto relationship” is defined in section 21C of the Interpretation Act 1987.
(2)
In this section, a reference to a child of a deceased person includes, if the deceased person was
in a de facto relationship, or a domestic relationship within the meaning of the Property
(Relationships) Act 1984, at the time of death, a reference to the following:
(a) a child born as a result of sexual relations between the parties to the relationship,
(b) a child adopted by both parties,
(c) in the case of a de facto relationship between a man and a woman, a child of the woman
of whom the man is the father or of whom the man is presumed, by virtue of the Status of
Children Act 1996, to be the father (except where the presumption is rebutted),
(d) in the case of a de facto relationship between 2 women, a child of whom both of those
women are presumed to be parents by virtue of the Status of Children Act 1996,
(e) a child for whose long-term welfare both parties have parental responsibility (within the
meaning of the Children and Young Persons (Care and Protection) Act 1998).
58
When an application may be made
(cf FPA 16 (1) (b) and 17)
(1)
An application for a family provision order may be made whether or not administration of the
estate of the deceased person has been granted.
Note. Administration may be granted for the purposes of an application for a family provision order (see section
91).
(2)
An application for a family provision order must be made not later than 12 months after the date
28
of the death of the deceased person, unless the Court otherwise orders on sufficient cause being
shown.
(3)
An application is taken to be made on the day it is filed in the Court’s registry.
Division 2 Determination of applications
59
When family provision order may be made
(cf FPA 7–9)
(1)
The Court may, on application under Division 1, make a family provision order in relation to the
estate of a deceased person, if the Court is satisfied that:
(a) the person in whose favour the order is to be made is an eligible person, and
(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f)
of the definition of eligible person in section 57—having regard to all the circumstances
of the case (whether past or present) there are factors which warrant the making of the
application, and
(c) at the time when the Court is considering the application, adequate provision for the
proper maintenance, education or advancement in life of the person in whose favour the
order is to be made has not been made by the will of the deceased person, or by the
operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2)
The Court may make such order for provision out of the estate of the deceased person as the
Court thinks ought to be made for the maintenance, education or advancement in life of the
eligible person, having regard to the facts known to the Court at the time the order is made.
Note. Property that may be the subject of a family provision order is set out in Division 3. This Part applies to
property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that
may be designated as part of the notional estate of a deceased person for the purpose of making a family
provision order.
(3)
The Court may make a family provision order in favour of an eligible person in whose favour a
family provision order has previously been made in relation to the same estate only if:
(a) the Court is satisfied that there has been a substantial detrimental change in the eligible
person’s circumstances since a family provision order was last made in favour of the
person, or
(b) at the time that a family provision order was last made in favour of the eligible person:
(i)
the evidence about the nature and extent of the deceased person’s estate (including
any property that was, or could have been, designated as notional estate of the
deceased person) did not reveal the existence of certain property (the undisclosed
property), and
(ii) the Court would have considered the deceased person’s estate (including any
property that was, or could have been, designated as notional estate of the deceased
person) to be substantially greater in value if the evidence had revealed the
existence of the undisclosed property, and
(iii) the Court would not have made the previous family provision order if the evidence
had revealed the existence of the undisclosed property.
(4)
The Court may make a family provision order in favour of an eligible person whose application
for a family provision order in relation to the same estate was previously refused only if, at the
time of refusal, there existed all the circumstances regarding undisclosed property described in
subsection (3) (b).
29
60
Matters to be considered by Court
(cf FPA 7–9)
(1)
The Court may have regard to the matters set out in subsection (2) for the purpose of
determining:
(a) whether the person in whose favour the order is sought to be made (the applicant) is an
eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2)
The following matters may be considered by the Court:
(a) any family or other relationship between the applicant and the deceased person, including
the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person
to the applicant, to any other person in respect of whom an application has been made for
a family provision order or to any beneficiary of the deceased person’s estate,
(c) the nature and extent of the deceased person’s estate (including any property that is, or
could be, designated as notional estate of the deceased person) and of any liabilities or
charges to which the estate is subject, as in existence when the application is being
considered,
(d) the financial resources (including earning capacity) and financial needs, both present and
future, of the applicant, of any other person in respect of whom an application has been
made for a family provision order or of any beneficiary of the deceased person’s estate,
(e) if the applicant is cohabiting with another person—the financial circumstances of the
other person,
(f)
any physical, intellectual or mental disability of the applicant, any other person in respect
of whom an application has been made for a family provision order or any beneficiary of
the deceased person’s estate that is in existence when the application is being considered
or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition,
conservation and improvement of the estate of the deceased person or to the welfare of
the deceased person or the deceased person’s family, whether made before or after the
deceased person’s death, for which adequate consideration (not including any pension or
other benefit) was not received, by the applicant,
(i)
any provision made for the applicant by the deceased person, either during the deceased
person’s lifetime or made from the deceased person’s estate,
(j)
any evidence of the testamentary intentions of the deceased person, including evidence of
statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased
person before the deceased person’s death and, if the Court considers it relevant, the
extent to which and the basis on which the deceased person did so,
(l)
whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the
deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased
person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of
the deceased person’s death or at the time the application is being considered.
Division 3 Property that may be used for family provision orders
63
(1)
Property that may be used for family provision orders
(cf FPA 6 (1), definition of “estate”, 6 (4) and (5))
A family provision order may be made in relation to the estate of a deceased person.
30
(2)
If the deceased person died leaving a will, the estate of the deceased person includes property
that would, on a grant of probate of the will, vest in the executor of the will, or would on a grant
of administration with the will annexed, vest in the legal representative appointed under that
grant.
(3)
A family provision order may not be made in relation to property of the estate that has been
distributed by the legal representative of the estate in compliance with the requirements of
section 93, except as provided by subsection (5).
(4)
Where property of the estate of a deceased person is held by the legal representative of that
estate as trustee for a person or for a charitable or other purpose, the property is to be treated, for
the purposes of this Chapter, as not having been distributed unless it is vested in interest in that
person or for that purpose.
(5)
A family provision order may be made in relation to property that is not part of the estate of a
deceased person, or that has been distributed, if it is designated as notional estate of the
deceased person by an order under Part 3.3.
Division 4 General provisions relating to family provision orders
72
Effect of family provision order
(cf FPA 14 (1))
(1)
A family provision order takes effect, unless the Court otherwise orders, as if the provision was
made:
(a)
in a codicil to the will of the deceased person, if the deceased person made a will, or
(b)
in a will of the deceased person, if the deceased person died intestate.
(2)
Without limiting subsection (1), the Court may at the time of distribution of an estate that is
insufficient to give effect to a family provision order make such orders concerning the
abatement or adjustment of distributions from the estate as between the person in whose favour
the family provision order is made and the other beneficiaries of the estate as it considers to be
just and equitable among the persons affected.
Part 3.3 Notional estate orders
Note. This Part applies where, as a result of certain property transactions, property is not included in
the estate of a deceased person or where property has been distributed from the estate of a deceased
person. This Part enables the Court in limited circumstances to make an order designating property
that is not included in the estate, or has been distributed from the estate, as “notional estate” of the
deceased person for the purpose of making a family provision order under Part 3.2 in respect of the
estate of the deceased person (or for the purpose of ordering that costs in the proceedings be paid from
the notional estate).
Property may be designated as notional estate if it is property held by, or on trust for, a person by
whom property became held (whether or not as trustee), or the object of a trust for which property
became held on trust:
(a)
(b)
(c)
as a result of a distribution from the estate of a deceased person (see section 79), whether or not
the property was the subject of the distribution, or
as a result of a relevant property transaction, whether or not the property was the subject of the
transaction (see section 80), or
as a result of a relevant property transaction entered into by a person by whom property became
held, or for whom property became held on trust, as a result of a relevant property transaction or
31
a distribution from the estate of a deceased person (see section 81), whether or not the property
was the subject of the relevant property transaction.
Property may also be designated as notional estate if it is property:
(a) held by the legal representative of the estate of a person by whom property became held as a
result of a relevant property transaction or distribution referred to in paragraphs (a)–(c) above
and who has since died (known as the deceased transferee), or
(b) held by, or on trust for, a person by whom property became held, or for the object of a trust for
which property became held on trust, as a result of a distribution from the estate of a deceased
transferee,
whether or not the property was the subject of the relevant property transaction or the distribution from
the estate of the deceased person or the deceased transferee (see section 82).
Section 92 enables the Court to replace property in the estate or notional estate of a deceased person
that has been, or is proposed to be, affected by a family provision order with property offered in
substitution for the affected property.
Division 1 Relevant property transactions
74
Definition
In this Part:
relevant property transaction means a transaction or circumstance affecting property and described in
section 75 or 76.
75
Transactions that are relevant property transactions
(cf FPA 22 (1), (3) and (7))
(1)
A person enters into a relevant property transaction if the person does, directly or indirectly, or
does not do, any act that (immediately or at some later time) results in property being:
(a)
held by another person (whether or not as trustee), or
(b)
subject to a trust,
and full valuable consideration is not given to the person for doing or not doing the act.
(2)
The fact that a person has entered into a relevant property transaction affecting property does
not prevent the person from being taken to have entered into another relevant property
transaction if the person subsequently does, or does not do, an act affecting the same property
the subject of the first transaction.
(3) The making of a will by a person, or the omission of a person to make a will, does not constitute
an act or omission for the purposes of subsection (1), except in so far as it constitutes a failure to
exercise a power of appointment or disposition in relation to property that is not in the person’s
estate.
76
Examples of relevant property transactions
(cf FPA 22 (4))
(1)
The circumstances set out in subsection (2), subject to full valuable consideration not being
given, constitute the basis of a relevant property transaction for the purposes of section 75.
(2)
The circumstances are as follows:
(a) if a person is entitled to exercise a power to appoint, or dispose of, property that is not in
the person’s estate and does not exercise that power before ceasing (because of death or
the occurrence of any other event) to be entitled to do so, with the result that the property
becomes held by another person (whether or not as trustee) or subject to a trust or another
32
(b)
(c)
(d)
(e)
(f)
(3)
person (immediately or at some later time) becomes, or continues to be, entitled to
exercise the power,
if a person holds an interest in property as a joint tenant and the person does not sever that
interest before ceasing (because of death or the occurrence of any other event) to be
entitled to do so, with the result that, on the person’s death, the property becomes, by
operation of the right of survivorship, held by another person (whether or not as trustee)
or subject to a trust,
if a person holds an interest in property in which another interest is held by another
person (whether or not as trustee) or is subject to a trust, and the person is entitled to
exercise a power to extinguish the other interest in the property and the power is not
exercised before the person ceases (because of death or the occurrence of any other event)
to be so entitled with the result that the other interest in the property continues to be so
held or subject to the trust,
if a person is entitled, in relation to a life assurance policy on the person’s life under
which money is payable on the person’s death or if some other event occurs to a person
other than the legal representative of the person’s estate, to exercise a power:
(i)
to substitute a person or a trust for the person to whom, or trust subject to which,
money is payable under the policy, or
(ii) to surrender or otherwise deal with the policy,
and the person does not exercise that power before ceasing (because of death or the
occurrence of any other event) to be entitled to do so,
if a person who is a member of, or a participant in, a body (corporate or unincorporate),
association, scheme, fund or plan, dies and property (immediately or at some later time)
becomes held by another person (whether or not as trustee) or subject to a trust because of
the person’s membership or participation and the person’s death or the occurrence of any
other event,
if a person enters into a contract disposing of property out of the person’s estate, whether
or not the disposition is to take effect before, on or after the person’s death or under the
person’s will or otherwise.
Nothing in this section prevents any other act or omission from constituting the basis of a
relevant property transaction for the purposes of section 75.
(4) For the purposes of this Chapter, in the circumstances described in subsection (2) (b), a person is
not given full or any valuable consideration for not severing an interest in property held as a joint
tenant merely because, by not severing that interest, the person retains, until his or her death, the
benefit of the right of survivorship in respect of that property.
77
When relevant property transactions take effect
(cf FPA 22 (2), (5) and (6))
(1)
For the purposes of this Chapter, a relevant property transaction is taken to have effect when the
property concerned becomes held by another person or subject to a trust or as otherwise
provided by this section.
(2)
A relevant property transaction consisting of circumstances described in section 76 (2) (a), (c) or
(d) is taken to have been entered into immediately before, and to take effect on, the person’s
death or the occurrence of the other event resulting in the person no longer being entitled to
exercise the relevant power.
(3)
A relevant property transaction consisting of circumstances described in section 76 (2) (b) or (e)
is taken to have been entered into immediately before, and to take effect on, the person’s death
or the occurrence of the other event referred to in those paragraphs.
(4) A relevant property transaction that involves any kind of contract for which valuable
consideration, though not full valuable consideration, is given for the person to enter into the
33
transaction is taken to be entered into and take effect when the contract is entered into.
Division 2 When notional estate orders may be made
78
Notional estate order may be made only if family provision order or certain costs orders to
be made
(1)
The Court may make an order designating property as notional estate only:
(a)
for the purposes of a family provision order to be made under Part 3.2, or
(b)
for the purposes of an order that the whole or part of the costs of proceedings in
relation to the estate or notional estate of a deceased person be paid from the notional estate of
the deceased person.
Note. Section 63 (5) enables a family provision order to be made in relation to property designated as
notional estate of a deceased person.
Section 99 enables the Court to order that costs be paid out of the notional estate of a deceased person.
(2)
The Court must not make an order under subsection (1) (b) for the purposes of an order that the
whole or part of an applicant’s costs be paid from the notional estate of the deceased person
unless the Court makes or has made a family provision order in favour of the applicant.
79
Notional estate order may be made where property of estate distributed
(cf FPA 24)
The Court may, on application by an applicant for a family provision order or on its own motion, make
a notional estate order designating property specified in the order as notional estate of a deceased
person if the Court is satisfied that on, or as a result of, a distribution of the deceased person’s estate,
property (whether or not the subject of the distribution) became held by a person (whether or not as
trustee) or subject to a trust.
Division 2 When notional estate orders may be made
80
Notional estate order may be made where estate affected by relevant property transaction
(cf FPA 23)
(1)
The Court may, on application by an applicant for a family provision order or on its own
motion, make a notional estate order designating property specified in the order as notional
estate of a deceased person if the Court is satisfied that the deceased person entered into a
relevant property transaction before his or her death and that the transaction is a transaction to
which this section applies.
Note. The kinds of transactions that constitute relevant property transactions are set out in sections 75
and 76.
(2)
This section applies to the following relevant property transactions:
(a) a transaction that took effect within 3 years before the date of the death of the deceased
person and was entered into with the intention, wholly or partly, of denying or limiting
provision being made out of the estate of the deceased person for the maintenance,
education or advancement in life of any person who is entitled to apply for a family
provision order,
(b) a transaction that took effect within one year before the date of the death of the deceased
person and was entered into when the deceased person had a moral obligation to make
adequate provision, by will or otherwise, for the proper maintenance, education or
34
(c)
advancement in life of any person who is entitled to apply for a family provision order
which was substantially greater than any moral obligation of the deceased person to enter
into the transaction,
a transaction that took effect or is to take effect on or after the deceased person’s death.
(3)
Property may be designated as notional estate by a notional estate order under this section if it is
property that is held by, or on trust for:
(a) a person by whom property became held (whether or not as trustee) as the result of a
relevant property transaction, or
(b) the object of a trust for which property became held on trust as the result of a relevant
property transaction,
whether or not the property was the subject of the relevant property transaction.
81
Notional estate order may be made where estate affected by subsequent relevant property
transaction
(cf FPA 25)
(1)
The Court may, on application by an applicant for a family provision order or on its own
motion, make a notional estate order designating property specified in the order as notional
estate of a deceased person if the Court is satisfied that:
(a)
it:
(i)
has power, under this or any other section of this Chapter, to make a notional estate
order designating property held by, or on trust for, a person (the transferee) as
notional estate of the deceased person, or
(ii) immediately before the date of the death of a person (the deceased transferee), had
power, under this or any other section of this Chapter, to make a notional estate
order designating property held by, or on trust for, the deceased transferee as
notional estate of the deceased person, and
(b) since the relevant property transaction or distribution that gave rise to the power to make
the order was entered into or made, the transferee, or the deceased transferee, entered into
a relevant property transaction, and
(c) there are special circumstances that warrant the making of the order.
(2)
Property may be designated as notional estate by a notional estate order under this section if it is
property that is held by, or on trust for:
(a) a person by whom property became held (whether or not as trustee) as the result of the
relevant property transaction entered into by the transferee or the deceased transferee, or
(b) the object of a trust for which property became held on trust as the result of the relevant
property transaction entered into by the transferee or the deceased transferee, whether or
not the property was the subject of the relevant property transaction.
(3)
A notional estate order may be made under this section instead of or in addition to an order
under section 79, 80 or 82.
82
Notional estate order may be made where property of deceased transferee’s estate held by
legal representative or distributed
(1)
The Court may, on application by an applicant for a family provision order or on its own
motion, make a notional estate order designating property specified in the order as notional
estate of a deceased person if the Court is satisfied that:
(a) immediately before the date of the death of a person (the deceased transferee), it had
power, under this or any other section of this Chapter, to make a notional estate order
designating property held by, or on trust for, the deceased transferee as notional estate of
the deceased person, and
(b) the power did not arise because property became held by the deceased transferee as
trustee only, and
35
(c)
in the case of property referred to in subsection (2) (b), there are special circumstances
that warrant the making of the order.
(2)
The following property may be designated as notional estate by a notional estate order under
this section, whether or not it was the property the subject of the relevant property transaction or
distribution from which the Court’s power to make such an order arose:
(a) if administration has been granted in respect of the estate of the deceased transferee—
property that is held by the legal representative of the estate of the deceased transferee in
his or her capacity as legal representative of the estate of the deceased transferee,
(b) if all or part of the estate of the deceased transferee has been distributed—property that is
held by, or on trust for:
(i)
a person by whom property became held (whether or not as trustee) as the result of
the distribution of the deceased transferee’s estate, or
(ii) the object of a trust for which property became held on trust as the result of the
distribution of the deceased transferee’s estate.
(3)
A notional estate order may be made under this section instead of or in addition to an order
under section 79, 80 or 81.
Note. Administration of the estate of a deceased transferee may be granted for the purposes of being
able to designate property as notional estate under this section (see section 91).
83
Disadvantage and other matters required before order can be made
(cf FPA 26)
(1)
The Court must not, merely because a relevant property transaction has been entered into, make
an order under section 80, 81 or 82 unless the Court is satisfied that the relevant property
transaction or the holding of property resulting from the relevant property transaction:
(a) directly or indirectly disadvantaged the estate of the principal party to the transaction or a
person entitled to apply for a family provision order from the estate or, if the deceased
person was not the principal party to the transaction, the deceased person (whether before,
on or after death), or
(b) involved the exercise by the principal party to the transaction or any other person
(whether alone or jointly or severally with any other person) of a right, a discretion or a
power of appointment, disposition, nomination or direction that, if not exercised, could
have resulted in a benefit to the estate of the principal party to the transaction or a person
entitled to apply for a family provision order from the estate or, if the deceased person
was not the principal party to the transaction, the deceased person (whether before, on or
after death), or
(c) involved the exercise by the principal party to the transaction or any other person
(whether alone or jointly or severally with any other person) of a right, a discretion or a
power of appointment, disposition, nomination or direction that could, when the relevant
property transaction was entered into or at a later time, have been exercised so as to result
in a benefit to the estate of the principal party to the transaction or a person entitled to
apply for a family provision order from the estate or, if the deceased person was not the
principal party to the transaction, the deceased person (whether before, on or after death),
or
(d) involved an omission to exercise a right, a discretion or a power of appointment,
disposition, nomination or direction that could, when the relevant property transaction
was entered into or at a later time, have been exercised by the principal party to the
transaction or any other person (whether alone or jointly or severally with any other
person) so as to result in a benefit to the estate of the principal party to the transaction or a
person entitled to apply for a family provision order from the estate or, if the deceased
person was not the principal party to the transaction, the deceased person (whether before,
on or after death).
36
(2)
In this section:
principal party to the transaction, in relation to a relevant property transaction, means the
person who, under section 75 or 76, enters into the relevant property transaction.
Division 3 Restrictions and protections relating to notional estate orders
87
General matters that must be considered by Court
(cf FPA 27 (1))
The Court must not make a notional estate order unless it has considered the following:
(a) the importance of not interfering with reasonable expectations in relation to property,
(b) the substantial justice and merits involved in making or refusing to make the order,
(c) any other matter it considers relevant in the circumstances.
88
Estate must not be sufficient for provision or order as to costs
(cf FPA 28 (1))
The Court must not make a notional estate order unless it is satisfied that:
(a) the deceased person left no estate, or
(b) the deceased person’s estate is insufficient for the making of the family provision order, or any
order as to costs, that the Court is of the opinion should be made, or
(c) provision should not be made wholly out of the deceased person’s estate because there are other
persons entitled to apply for family provision orders or because there are special circumstances.
90
Restrictions on out of time or additional applications
(cf FPA 28 (5))
(1)
This section applies to proceedings where:
(a) an application for a family provision order is made later than 12 months after the date of
the death of the deceased person, or
(b) an application for a family provision order is made in relation to an estate that has been
previously the subject of a family provision order.
(2)
The Court must not make a notional estate order in the proceedings unless:
(a)
it is satisfied that:
(i)
the property to be designated as notional estate is property that was the subject of a
relevant property transaction or of a distribution from the estate of a deceased
person or from the estate of a deceased transferee, and
(ii) the person who holds the property holds it as a result of the relevant property
transaction or distribution as trustee only, and
(iii)
the property is not vested in interest in any beneficiary under the trust, or
(b) it is satisfied that there are other special circumstances that justify the making of the
notional estate order.
Part 3.4 Miscellaneous
91
Grant of probate or administration to enable application to be dealt with
(cf WPA 41A)
(1)
This section applies if an application is made by a person for a family provision order, or
notional estate order, in respect of the estate of a deceased person, or deceased transferee,
respectively, in relation to which administration has not been granted.
(2)
The Court may, if it is satisfied that it is proper to do so, grant administration in respect of the
estate of the deceased person or deceased transferee to the applicant for the purposes only of
37
permitting the application concerned to be dealt with, whether or not the deceased person or
deceased transferee left property in New South Wales.
(3)
The granting of administration under the Probate and Administration Act 1898 does not:
(a)
prevent the Court from granting administration under this section, or
(b)
unless the Court otherwise orders, affect any previous grant of administration under
this section.
(4) The provisions of the Probate and Administration Act 1898 apply to a grant of administration
under this section, and to the legal representative of the estate, in the same way as they apply to a
grant of administration under that Act and the legal representative of any estate for which such a
grant has been made.
93
Protection of legal representative who distributes after giving notice
(cf FPA 35 (1))
(1)
The legal representative of the estate of a deceased person may distribute the property in the
estate if:
(a)
the property is distributed at least 6 months after the deceased person’s death, and
(b)
the legal representative has given notice in the form approved under section 17 of the
Civil Procedure Act 2005 that the legal representative intends to distribute the
property in the estate after the expiration of a specified time, and
Note. Section 101 of this Act provides for the service of notices.
(c)
(d)
(e)
(2)
(3)
the time specified in the notice is not less than 30 days after the notice is given, and
the time specified in the notice has expired, and
at the time of distribution, the legal representative does not have notice of any
application or intended application for a family provision order affecting the estate of
the deceased person.
A legal representative who distributes property of the estate of a deceased person is not liable in
respect of that distribution to any person who was an applicant for a family provision order
affecting the estate if the legal representative did not have notice at the time of the distribution
of the application and if:
(a)
the distribution was made in accordance with this section, and
(b)
the distribution was properly made by the legal representative.
For the purposes of this section, notice to the legal representative of an application or intention
to make any application under this Chapter must be in writing signed in accordance with rules
for the signing of documents by a party in proceedings under the Uniform Civil Procedure Rules
2005.
Note. On the enactment of this subsection, rules for the signing of documents by a party in
proceedings were contained in Rule 4.4 of the Uniform Civil Procedure Rules 2005.
94
Protection of legal representative in other circumstances
(1)
A legal representative of the estate of a deceased person who distributes property in the estate
for the purpose of providing those things immediately necessary for the maintenance or
education of an eligible person who was wholly or substantially dependent on the deceased
person immediately before his or her death is not liable for any such distribution that is properly
made.
(2)
Subsection (1) applies whether or not the legal representative had notice at the time of the
distribution of any application or intended application for a family provision order affecting
property in the estate.
38
(3)
No person who may have made or may be entitled to make an application under this Chapter is
entitled to bring an action against the legal representative of the estate of a deceased person
because the legal representative has distributed any part of the estate if the distribution was
properly made by the legal representative after the person (being of full legal capacity) has
notified the legal representative in writing that the person either:
(a)
consents to the distribution, or
(b)
does not intend to make any application under this Chapter that would affect the
proposed distribution.
(4)
A legal representative of the estate of a deceased person who receives notice of an intended
application under this Chapter is not liable in respect of a distribution of any part of the estate if
the distribution was made in compliance with section 93 (1) by the legal representative not
earlier than 12 months after the deceased person’s death.
(5)
Subsection (4) does not apply if the legal representative receives written notice that the
application has been commenced in the Court or is served with a copy of the application before
making the distribution.
(6)
For the purposes of this section, notice to the legal representative of an application or intention
to make any application under this Chapter must be in writing signed in accordance with rules
for the signing of documents by a party in proceedings under the Uniform Civil Procedure Rules
2005.
Note. On the enactment of this subsection, rules for the signing of documents by a party in
proceedings were contained in Rule 4.4 of the Uniform Civil Procedure Rules 2005.
95
Release of rights under Chapter
(cf FPA 31 (1)–(6))
(1)
A release by a person of the person’s rights to apply for a family provision order has effect only
if it has been approved by the Court and to the extent that the approval has not been revoked by
the Court.
(2)
Proceedings for the approval by the Court of a release of a person’s rights to apply for a family
provision order may be commenced before or after the date of the death of the person whose
estate may be the subject of the order.
(3)
The Court may approve of a release in relation to the whole or any part of the estate or notional
estate of a person.
(4)
In determining an application for approval of a release, the Court is to take into account all the
circumstances of the case, including whether:
(a) it is or was, at the time any agreement to make the release was made, to the advantage,
financially or otherwise, of the releasing party to make the release, and
(b) it is or was, at that time, prudent for the releasing party to make the release, and
(c) the provisions of any agreement to make the release are or were, at that time, fair and
reasonable, and
(d) the releasing party has taken independent advice in relation to the release and, if so, has
given due consideration to that advice.
(5)
In this section:
release of rights to apply for a family provision order means a release of such rights, if any, as a
person has to apply for a family provision order, and includes a reference to:
(a)
an instrument executed by the person that would be effective as a release of those rights if
39
(b)
approved by the Court under this section, and
an agreement to execute such an instrument.
Chapter 4 Intestacy
Part 4.1 Preliminary
101
Definitions
In this Chapter:
brother or sister—a person is the brother or sister of another if they have one or both parents in
common.
deceased person—a deceased person is one who did not survive the intestate.
domestic partnership—see section 105.
eligible relative means a relative of the intestate who is entitled to share in the distribution of the
intestate estate under Part 4.3.
entitlement to the whole of the intestate estate—see section 103.
Indigenous person is a person who:
(a) is of Aboriginal or Torres Strait Islander descent, and
(b) identifies as an Aboriginal person or Torres Strait Islander, and
(c) is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a
Torres Strait Islander community.
intestate estate means:
(a) in the case of an intestate who leaves a will—property that is not effectively disposed of by will,
and
(b) in any other case—all the property left by the intestate.
leave—a person leaves another if the person dies and is survived by the other.
personal effects of an intestate means the intestate’s tangible personal property except the following:
(a)
property used exclusively for business purposes,
(b)
banknotes or coins (unless forming a collection made in pursuit of a hobby or for some other
non-commercial purpose),
(c)
property held as a pledge or other form of security,
(d)
property (such as gold bullion or uncut diamonds):
(i)
in which the intestate has invested as a hedge against inflation or adverse currency
movements, and
(ii) which is not an object of household, or personal, use, decoration or adornment,
(e)
an interest in land (whether freehold or leasehold).
predecease—a person is taken to predecease the intestate if the person does not survive the intestate.
presumptive share of an intestate estate of a deceased eligible relative of the intestate means the
entitlement the relative would have had if he or she had survived the intestate.
registered valuer has the same meaning as it has in the Valuers Act 2003.
spouse—see section 104.
statutory legacy for a spouse—see section 106.
survive—see section 107.
102
Intestate
An intestate is a person who dies and either does not leave a will or leaves a will but does not dispose
effectively by will of all or part of his or her property.
103
Entitlement to the whole of the intestate estate
A reference in this Chapter to an entitlement to the whole of the intestate estate is a reference to so
40
much of the estate as remains after payment of all such funeral and administration expenses, debts and
other liabilities as are properly payable out of the estate.
104
Spouse
A spouse of an intestate is a person:
(a) who was married to the intestate immediately before the intestate’s death, or
(b) who was a party to a domestic partnership with the intestate immediately before the intestate’s
death.
105
Domestic partnership
A domestic partnership is a relationship between the intestate and another person that is a registered
relationship, or interstate registered relationship, within the meaning of the Relationships Register Act
2010, or a de facto relationship that:
(a)
has been in existence for a continuous period of 2 years, or
(b)
has resulted in the birth of a child.
106
Spouse’s statutory legacy
(1)
The statutory legacy for a spouse consists of:
(a)
the CPI adjusted legacy, and
(b)
if the statutory legacy is not paid, or not paid in full, within 1 year after the intestate’s
death—interest at the relevant rate on the amount outstanding from time to time (excluding
interest) from the first anniversary of the intestate’s death to the date of payment of the legacy in
full.
(2)
The CPI adjusted legacy is to be determined in accordance with the following formula:
where:
R represents the CPI adjusted legacy.
A is $350,000.
C represents the Consumer Price Index number for the last quarter for which such a number was
published before the date on which the intestate died.
D represents the Consumer Price Index number for the December 2005 quarter.
(3)
If, however, a spouse is entitled to a statutory legacy under this Act and under the law of another
Australian jurisdiction or jurisdictions:
(a)
(b)
the spouse’s statutory legacy is an amount equivalent to the highest amount fixed by way
of statutory legacy under any of the relevant laws (including this Act), but
the following qualifications apply:
(i)
amounts received by the spouse, by way of statutory legacy, under any of the other
relevant laws are taken to have been paid towards satisfaction of the spouse’s
statutory legacy under this Act,
(ii) if any of the relevant laws contain no provision corresponding to subparagraph (i),
no amount is payable by way of statutory legacy under this Act until the spouse’s
entitlement under that law is satisfied, or the spouse renounces the spouse’s
entitlement to payment, or further payment, by way of statutory legacy, under that
law.
(4)
If the value of an intestate estate is insufficient to allow for the payment of a statutory legacy (or
statutory legacies) in full, the statutory legacy abates to the necessary extent and, if 2 or more
statutory legacies are payable, they abate ratably.
(5)
The relevant rate of interest is the rate that lies 2% above the cash rate last published by the
41
Reserve Bank of Australia before 1 January in the calendar year in which interest begins to
accrue.
(6)
If the Australian Statistician publishes a Consumer Price Index number in respect of a particular
quarter in substitution for a Consumer Price Index number previously published in respect of
that quarter:
(a) except as provided by paragraph (b)—the publication of the later Index number is to be
disregarded, or
(b) if the Minister so directs—regard is to be had to the later and not to the earlier Index
number.
(7)
If the reference base for the Consumer Price Index is changed, regard is to be had only to Index
numbers published in terms of the new reference base or to Index numbers converted to the new
reference base in accordance with an arithmetical conversion factor specified by the Australian
Statistician.
(8)
An adjustment under subsection (3) is to be made to the nearest whole dollar.
(9)
In this section:
Consumer Price Index number, for a quarter, means the All Groups Consumer Price index number,
being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of
that quarter.
107
Survivorship
(1)
A person will not be regarded as having survived an intestate unless:
(a) the person is born before the intestate’s death and survives the intestate by at least 30
days, or
(b) the person is born after the intestate’s death after a period of gestation in the uterus that
commenced before the intestate’s death and survives the intestate for at least 30 days after
birth.
(2)
The rules stated in subsection (1) are not to be applied if, as a result of their application, the
intestate estate would pass to the State.
108
General limitation of non-spousal entitlements
(1)
A person is not entitled to participate in the distribution of an intestate estate unless the person
survives the intestate.
(2)
A reference in this Act to a child, issue, relative, or issue of a relative, of an intestate is limited
to a person of the relevant description whose entitlement to share in the distribution of the
intestate estate is not excluded under subsection (1).
109
Adoption
An adopted child is to be regarded, for the purposes of distribution on an intestacy, as a child of the
adoptive parent or parents and:
(a) the child’s family relationships are to be determined accordingly, and
(b) family relationships that exist as a matter of biological fact, and are not consistent with the
relationship created by adoption, are to be ignored.
Part 4.2 Spouse’s entitlements
Note. In the case of an Indigenous person’s estate, this Part is subject to exclusion or modification by a
distribution order under Part 4.4.
42
Division 1 Entitlement of surviving spouse
110
Application of this Division
This Division applies where the intestate leaves a spouse (but not more than one spouse).
111
Spouse’s entitlement where no issue
If an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate.
112
Spouse’s entitlement where issue are also issue of the spouse
If an intestate leaves a spouse and issue and the issue are all also issue of the spouse, the spouse is
entitled to the whole of the intestate estate.
113
Spouse’s entitlement where any issue are not issue of the spouse
If an intestate leaves a spouse and any issue who are not issue of the spouse, the spouse is entitled to:
(a)
the intestate’s personal effects, and
(b)
a statutory legacy, and
(c)
one-half of the remainder (if any) of the intestate estate.
Division 2 Spouse’s preferential right to acquire property from the estate
114
Application of this Division
This Division applies where the intestate leaves a spouse (but not more than one spouse).
115 Spouse’s right of election
(1)
(2)
A spouse is entitled to elect to acquire property from an intestate estate.
A spouse’s election to acquire property from an intestate estate requires the Court’s
authorisation if:
(a) the property forms part of a larger aggregate, and
(b) the acquisition could substantially diminish the value of the remainder of the property or
make the administration of the estate substantially more difficult.
Note. For example:
(a) The acquisition of a single item from a group of items might substantially diminish the
value of the remainder of the group or make it substantially more difficult to dispose of
the remainder of the group.
(b) The acquisition of the farmhouse from a farming property might substantially diminish
the value of the remainder of the farming property or make it substantially more difficult
to dispose of it.
(3)
The Court may grant an authorisation under subsection (2) and may impose such conditions as it
considers just and equitable to address the matters referred to in that subsection, including a
condition that the spouse pay compensation to the estate in addition to consideration to be given
for the property under this Division and a condition as to costs.
(4)
The Court must refuse authorisation if it considers that the matters referred to in subsection (2)
cannot be adequately addressed by granting an authorisation subject to such conditions.
(5)
A spouse is not entitled to elect to acquire property from an intestate estate if the transfer or
conveyance by the personal representative to the spouse of the interest of the intestate in the
property would require compliance with the mandatory provisions unless those provisions
43
would be complied with and the costs of complying with the provisions are paid by the spouse.
(6)
A spouse who is a personal representative of the intestate is not prevented from making an
election to acquire property from the intestate estate by the fact that the spouse is a trustee of the
intestate estate.
(7)
Nothing in this section confers on a spouse any right against a person who in good faith
purchased for value from the personal representative of the intestate any property of the
intestate.
(8)
In this section:
mandatory provisions means the following:
(a)
(b)
(c)
the Environmental Planning and Assessment Act 1979, the Conveyancing Act 1919 and any
other Act with respect to the manner of dividing land into parts, and with respect to any
requirement incidental to the manner of dividing land into parts,
the Strata Schemes (Freehold Development) Act 1973 with respect to the manner of subdividing
land within the meaning of section 7 (1) of that Act or of any lot within the meaning of section 5
(1) of that Act, and with respect to any requirement incidental to the manner of subdividing any
such land or lot,
the Strata Schemes (Leasehold Development) Act 1986, with respect to the manner of
subdividing land within the meaning of section 6 (1) of that Act or of any lot within the meaning
of section 4 (1) of that Act, and with respect to any requirement incidental to the manner of
subdividing any such land or lot.
116
Notice to be given to spouse of right of election
(1)
An intestate’s personal representative must, within one month of the grant of administration of
the intestate estate, give notice to the intestate’s spouse of the spouse’s right of election stating:
(a)
how the right is to be exercised, and
(b)
the fact that the election may be subject to the Court’s authorisation and the
circumstances in which such an authorisation is required, and
(c)
that the right must be exercised within 3 months (or a longer period allowed by the
Court) after the date of the notice.
(2)
Notice is not required under this section if the spouse is the personal representative, or one of
the personal representatives, of the intestate.
117
Time for making election
(1)
The election must be made:
(a) if the spouse is entitled to notice of the right of election—within 3 months after the date
of the notice, or
(b) if the spouse is the intestate’s personal representative (or one of the personal
representatives)—within 3 months after the grant of administration of the intestate estate.
(2)
The Court may, however, if it considers there is sufficient cause for doing so, extend the time
for making the election.
Note. The Court might, for example, extend the period for making an election if the Court’s
authorisation for making the election is required or if a question remains unresolved regarding the
existence, or the nature, of a person’s interest in the intestate estate.
(3) The Court may extend the time for making the election whether or not the time for making the
election has passed, but not after the administration of the estate has been completed.
44
118
How election to be made
(1)
A spouse’s election is made by written notice identifying, with reasonable particularity, the
property the spouse elects to acquire.
(2)
Except as provided by subsection (3), the notice of election must be given:
(a)
to each person, apart from the spouse, who is a personal representative of the intestate,
and
(b)
to each person, apart from the spouse, who is entitled to share in the intestate estate.
(3)
The Court may direct that any of the persons referred to in subsection (2) need not be given the
notice of election if it considers that giving the notice is unnecessary, unreasonable or
impracticable in the circumstances of the case.
(4)
A spouse who has not reached the age of majority may make an election as validly and
effectively as an adult.
(5)
A spouse may revoke his or her election at any time before the transfer of the property to the
spouse.
(6)
A revocation is made by written notice of revocation given to the same persons as the notice of
election.
119
Basis of the election
(1)
The price for which a spouse may elect to acquire property from the intestate estate (the
exercise price) is the market value of the property as at the date of the intestate’s death.
(2)
If, however, the spouse and the holder of a mortgage, charge or encumbrance over property that
the spouse has elected to acquire agree to the assumption by the spouse of the liability secured
by the mortgage, charge or encumbrance the exercise price is to be reduced by the amount of the
liability (as at the date of transfer) secured by the mortgage, charge or encumbrance, but:
(a)
(b)
(3)
the spouse takes the property subject to the mortgage, charge or encumbrance, and
on the transfer of the property, the liability passes to the spouse and the estate is
exonerated from it.
The personal representative of an intestate must obtain a valuation from a registered valuer of
property forming part of the intestate estate if:
(a)
(b)
a spouse elects to acquire the property, or
a spouse asks the personal representative to obtain a valuation to enable the spouse to
decide whether to elect to acquire it.
(4)
The personal representative must give a copy of the valuation to the spouse and to the other
beneficiaries entitled to share in the intestate estate.
(5)
The requirement for a personal representative to obtain a valuation under subsection (3) may be
waived with the consent of all the beneficiaries entitled to share in the intestate estate.
120
Exercise price—how satisfied
If a spouse elects to acquire property from the intestate estate, the exercise price is to be satisfied:
(a)
first from money to which the spouse is entitled from the intestate estate, and
(b)
if that is insufficient, from money paid by the spouse to the estate on or before the date of
transfer.
45
121
Restriction on disposal of property from intestate estate
(1)
The personal representative of an intestate must not dispose of property from the intestate estate
(except to a spouse who has elected to acquire it) unless:
(a)
the personal representative is the spouse entitled to make the election, or
(b)
the time for exercising the election has elapsed and no election has been made, or
(c)
the election requires the Court’s authorisation but:
(i) the necessary authorisation has been refused, or
(ii) the application for authorisation has been withdrawn, or
(d)
the spouse has notified the personal representative, in writing, that he or she does not
propose to exercise the right to acquire property from the estate, or
(e)
sale of the property is required to meet funeral and administration expenses, debts and
other liabilities of the estate, or
(f)
the property is perishable or likely to decrease rapidly in value.
(2)
A transaction entered into contrary to this section is not invalid.
Division 3 Multiple spouses
122
Spouses’ entitlement where there are more than one spouse but no issue
If an intestate leaves more than one spouse, but no issue, the spouses are entitled to the whole of the
intestate estate in shares determined in accordance with this Division.
123
Spouses’ entitlement where issue are also issue of one or more of the spouses
If an intestate leaves more than one spouse and issue who are all issue of one or more of the surviving
spouses, the spouses are entitled to the whole of the intestate estate in shares determined in accordance
with this Division.
124
Spouses’ entitlement where any issue are not issue of a surviving spouse
If an intestate leaves more than one spouse and any issue who are not issue of a surviving spouse:
(a) the spouses are entitled to share the intestate’s personal effects in accordance with this
Division, and
(b) each spouse is entitled to share the statutory legacy that would be payable if the intestate
had left only one surviving spouse, and
(c) the spouses are entitled to share one-half of the remainder (if any) of the intestate estate in
accordance with this Division.
125
Sharing between spouses
(1)
If property is to be shared between spouses under this Division, the property is to be shared:
(a) in accordance with a written agreement between the spouses (a distribution agreement),
or
(b) in accordance with an order of the Court (a distribution order), or
(c) if the conditions prescribed by subsection (2) are satisfied—in equal shares.
(2)
The following conditions must be satisfied if the personal representative is to make an equal
division of property between spouses under subsection (1) (c):
(a) the personal representative has given each spouse a notice in writing stating that the
personal representative may distribute the property equally between the spouses unless,
within 3 months after the date of the notice:
(i)
they enter into a distribution agreement and submit the agreement to the personal
representative, or
46
(b)
(ii) at least one of the spouses applies to the Court for a distribution order,
at least 3 months have elapsed since the giving of the notices and:
(i)
the personal representative has not received a distribution agreement or notice of an
application for a distribution order, or
(ii) an application for a distribution order has been made but the application has been
dismissed or discontinued.
(3)
If a spouse asks the personal representative to initiate the process for making an equal division
of property under subsection (1) (c), the personal representative must, as soon as practicable:
(a)
give the notices required under subsection (2) (a), or
(b)
make an application to the Court for a distribution order.
126
Distribution orders
(1)
An intestate’s spouse or personal representative may apply to the Court for a distribution order.
(2)
If, however, the personal representative has given written notice under section 125 (3), the
application cannot (unless the Court otherwise allows) be made more than 3 months after the
date of the notice.
(3)
On an application under this section, the Court may order that the property be distributed
between the spouses in any way it considers just and equitable.
(4)
If the Court considers it just and equitable to do so, it may allocate the whole of the property to
one of the spouses to the exclusion of the other or others.
(5)
A distribution order may include conditions.
Part 4.3 Distribution among relatives
Note. In the case of an Indigenous person’s estate, this Part is subject to exclusion or modification by a
distribution order under Part 4.4.
127
Entitlement of children
(1)
If an intestate leaves no spouse but leaves issue, the intestate’s children are entitled to the whole
of the intestate estate.
(2)
If:
(a)
an intestate leaves:
(i) a spouse or spouses, and
(ii) any issue who are not also issue of a surviving spouse, and
(b) a part of the estate remains after satisfying the spouse’s entitlement, or the spouses’
entitlements,
the intestate’s children are entitled to the remaining part of the intestate estate.
(3)
If no child predeceased the intestate leaving issue who survived the intestate, then:
(a) if there is only one surviving child—the entitlement vests in the child, or
(b) if there are 2 or more surviving children—the entitlement vests in them in equal shares.
(4)
If one or more of the intestate’s children predeceased the intestate leaving issue who survived
the intestate:
(a) allowance must be made in the division of the entitlement between children for the
presumptive share of any such deceased child, and
(b) the presumptive share of any such deceased child is to be divided between that child’s
47
children and, if any of these grandchildren (of the intestate) predeceased the intestate
leaving issue who survived the intestate, the deceased grandchild’s presumptive share is
to be divided between the grandchild’s children (again allowing for the presumptive share
of a great grandchild who predeceased the intestate leaving issue who survived the
intestate), and so on until the entitlement is exhausted.
128
Parents
(1)
The parents of an intestate are entitled to the whole of the intestate estate if the intestate leaves:
(a)
no spouse, and
(b)
no issue.
(2) If there is only one surviving parent, the entitlement vests in the parent and, if both survive, it
vests in equal shares.
129
Brothers and sisters
(1)
The brothers and sisters of an intestate are entitled to the whole of the intestate estate if the
intestate leaves:
(a)
no spouse, and
(b)
no issue, and
(c)
no parent.
(2)
If no brother or sister predeceased the intestate leaving issue who survived the intestate, then:
(a)
if only one survives—the entitlement vests in the surviving brother or sister, or
(b)
if 2 or more survive—the entitlement vests in them in equal shares.
(3)
If a brother or sister predeceased the intestate leaving issue who survived the intestate:
(a) allowance must be made in the division of the estate between brothers and sisters for the
presumptive share of any such deceased brother or sister, and
(b) the presumptive share of any such deceased brother or sister is to be divided between the
brother’s or sister’s children and, if any of these children predeceased the intestate
leaving issue who survived the intestate, the deceased child’s presumptive share is to be
divided between the child’s children (again allowing for the presumptive share of a
grandchild who predeceased the intestate leaving issue who survived the intestate), and so
on until the entitlement is exhausted.
130
Grandparents
(1)
The grandparents of an intestate are entitled to the whole of an intestate estate if the intestate
leaves:
(a)
no spouse, and
(b)
no issue, and
(c)
no parent, and
(d)
no brother or sister, or issue of a deceased brother or sister.
(2)
If there is only one surviving grandparent, the entitlement vests in the grandparent and, if 2 or
more survive, it vests in them in equal shares.
131
Aunts and uncles
(1)
The brothers and sisters of each of an intestate’s parents are entitled to the whole of the intestate
estate if the intestate leaves:
(a)
no spouse, and
(b)
no issue, and
(c)
no parent, and
48
(d)
(e)
no brother or sister, or issue of a deceased brother or sister, and
no grandparent.
(2)
If no brother or sister of a parent of the intestate predeceased the intestate leaving a child who
survived the intestate, then:
(a)
if only one survives—the entitlement vests in the surviving brother or sister, or
(b)
if 2 or more survive—the entitlement vests in them in equal shares.
(3)
If a brother or sister of a parent of the intestate predeceased the intestate leaving a child who
survived the intestate, the child is entitled to the deceased parent’s presumptive share and, if
there are 2 or more children, they share equally.
132
Entitlement to take in separate capacities
A relative may be entitled to participate in the distribution of an intestate estate in separate capacities.
Note. For example, suppose that an intestate dies leaving no spouse and no surviving relatives except
children of a deceased maternal aunt and paternal uncle who had a child in common as well as
children of other unions. In this case, the child of the union between the maternal aunt and the paternal
uncle would be entitled to participate in the estate both as representative of the maternal aunt and as
representative of the paternal uncle.
Part 4.4 Indigenous persons’ estates
133
Application for distribution order
(1)
The personal representative of an Indigenous intestate, or a person claiming to be entitled to
share in an intestate estate under the laws, customs, traditions and practices of the Indigenous
community or group to which an Indigenous intestate belonged, may apply to the Court for an
order for distribution of the intestate estate under this Part.
(2)
An application under this section must be accompanied by a scheme for distribution of the estate
in accordance with the laws, customs, traditions and practices of the community or group to
which the intestate belonged.
(3)
An application under this section must be made within 12 months of the grant of administration
or a longer period allowed by the Court but no application may be made after the intestate estate
has been fully distributed.
(4)
After a personal representative makes, or receives notice of, an application under this section,
the personal representative must not distribute (or continue with the distribution of) property
comprised in the estate until:
(a)
the application has been determined, or
(b)
the Court authorises the distribution.
134
Distribution orders
(1)
The Court may, on an application under this Part, order that the intestate estate, or part of the
intestate estate, be distributed in accordance with the terms of the order.
(2)
An order under this Part may require a person to whom property was distributed before the date
of the application to return the property to the personal representative for distribution in
accordance with the terms of the order (but no distribution that has been, or is to be, used for the
maintenance, education or advancement in life of a person who was totally or partially
dependent on the intestate immediately before the intestate’s death can be disturbed).
49
Note. For example, a distribution may have been made under section 92A of the Probate and
Administration Act 1898 or section 94 of this Act.
(3)
In formulating an order under this Part, the Court must have regard to:
(a) the scheme for distribution submitted by the applicant, and
(b) the laws, customs, traditions and practices of the Indigenous community or group to
which the intestate belonged.
(4) The Court may not, however, make an order under this Part unless satisfied that the terms of the
order are, in all the circumstances, just and equitable.
135
Effect of distribution order under this Part
A distribution order under this Part operates (subject to its terms) to the exclusion of all other
provisions of this Act governing the distribution of the intestate estate.
Part 4.5 Absence of persons entitled
136
Intestate leaving no persons entitled
If an intestate dies leaving no person who is entitled to the intestate estate, the State is entitled to the
whole of the intestate estate.
137
State has discretion to make provision out of property to which it becomes entitled
(1)
If the State is entitled to an intestate estate under this Part, the Minister may, on application in
accordance with subsection (3) for a waiver of the State’s rights, waive the State’s rights in
whole or part in favour of:
(a)
dependants of the intestate, or
(b)
any persons who have, in the Minister’s opinion, a just or moral claim on the intestate,
or
(c)
(d)
any organisation or person for whom the intestate might reasonably be expected to
have made provision, or
the trustees for any person or organisation mentioned in paragraph (a), (b) or (c).
(2)
The Minister may grant a waiver under this section on conditions the Minister considers
appropriate.
(3)
Application for a waiver of the State’s rights to an intestate estate under this Part is to be made
in writing to the Crown Solicitor.
Part 4.6 Miscellaneous
138
Non-deferral of the interest of a minor
The entitlement of a minor to an interest in an intestate estate vests immediately (that is, it is not
deferred until the minor reaches majority or marries).
139
Effect of disclaimer etc
For the purposes of the distribution of an intestate estate, a person will be treated as having
predeceased the intestate if the person:
(a)
disclaims an interest, to which he or she would otherwise be entitled, in the intestate estate, or
50
(b)
is disqualified from taking an interest in the intestate estate for any reason.
Note. It follows that, if the person has issue, they may be entitled to take the person’s presumptive
share of the intestate estate by representation.
140
Effect of testamentary and other gifts
The distribution of an intestate estate is not affected by gifts made by the intestate to persons entitled:
(a)
during the intestate’s lifetime, or
(b)
in the case of a partial intestacy—by will.
Schedule 1 Savings, transitional and other provisions (Section 104)
Part 1 General
1
Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the
enactment of the following Acts:
this Act
Statute Law (Miscellaneous Provisions) Act (No 2) 2007, to the extent that it amends this Act
Succession Amendment (Family Provision) Act 2008
Succession Amendment (Intestacy) Act 2009
(2)
Any such provision may, if the regulations so provide, take effect from the date of assent to the
Act concerned or a later date.
(3)
To the extent to which any such provision takes effect from a date that is earlier than the date of
its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the
State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in
respect of anything done or omitted to be done before the date of its publication.
(4)
Regulations made as referred to in subclause (1) may have effect despite the terms of any
savings or transitional provisions contained in this Schedule, if the regulations so provide.
Part 2 Provisions consequent on enactment of this Act
2
Definition
In this Part:
repealed provisions means the provisions of the Wills, Probate and Administration Act 1898 repealed
by Schedule 2 to this Act (as in force immediately before Schedule 2 was repealed by the Statute Law
(Miscellaneous Provisions) Act (No 2) 2008).
3
Transitional provisions
(1)
Sections 4, 5, 6, 17, 19–26, 32, 35, 39, 41 and 42 apply to wills made on or after the
commencement of this clause.
(2)
Despite subclause (1), section 41 (Dispositions not to fail because issue have died before
testator) applies to a will made before the commencement of this clause if the testator has died
51
(3)
on or after the death of the issue and the deaths occurred on or after the commencement.
Sections 7, 8, 10, 27–31, 33, 34, 36–38, 40, 43–54 apply to a will whenever made, if the testator
dies on or after the commencement of this clause.
(4)
Sections 5, 11, 14 and 15 apply to the alteration, revocation or revival of a will on or after the
commencement of this clause even if the will was made before the commencement.
(5)
The Court may make an order under section 16 or 18 with respect to the alteration or revocation
of a will or part of a will even if the will was made before the commencement of this clause.
(6)
The repealed provisions, as in force immediately before the commencement of this clause,
continue to apply to wills made before the commencement, in so far as they are not affected by
the operation of subclauses (7), (8) and (9) or by the operation of the sections specified in
subclause (1), (2), (3) or (4).
(7)
Section 9 (Persons who cannot act as witnesses to wills) extends to a document that alters or
revokes a will and that is made on or after the commencement of this clause even if the will was
made before the commencement.
(8)
Section 12 (Effect of marriage on a will) extends to a will made before the commencement of
this clause, in relation to a marriage solemnised on or after the commencement.
(9)
Section 13 (What is the effect of divorce or an annulment on a will?) extends to a will made
before the commencement of this clause, if the divorce or the annulment of the marriage occurs
on or after the commencement.
4
Will of minor pursuant to leave of Court
Despite the repeal of section 6A of the Wills, Probate and Administration Act 1898, a will may be
made by a minor after repeal of that section pursuant to (and in accordance with any conditions of)
leave granted under that section before its repeal.
5
(Repealed)
Part 3 Provisions consequent on enactment of Succession Amendment (Family Provision) Act
2008
9
Definitions
In this Part:
amending Act means the Succession Amendment (Family Provision) Act 2008.
the 1916 provisions means Part 2 of the Testator’s Family Maintenance and Guardianship of Infants
Act 1916 as in force before its repeal by the Succession Amendment (Intestacy) Act 2009.
the 1982 Act means the Family Provision Act 1982.
10
General savings
(1)
Without limiting section 30 of the Interpretation Act 1987, any act, matter or thing done or
omitted to be done under a provision of the 1982 Act and having any force or effect
immediately before the commencement of a provision of this Act that replaces that provision is,
on that commencement, taken to have been done or omitted under the relevant provision of this
Act.
(2)
(a)
This clause does not apply:
to the extent that its application is inconsistent with any other provision of this Schedule
52
(b)
or a provision of a regulation under clause 1, or
to the extent that its application would be inappropriate in a particular case.
11
Transitional provisions
(1)
Chapter 3, as inserted by the amending Act, applies in relation to the estate of a person who dies
on or after the commencement of this clause.
(2)
The provisions of the 1982 Act, as in force before the commencement of this clause, continue to
apply in relation to the estate of a person who dies before the commencement of this clause, in
so far as they are not affected by the operation of this Part.
(3)
Without limiting subclause (2), the provisions of the 1982 Act, as in force immediately before
the commencement of this clause, continue to have effect in relation to the determination of an
application made before that commencement.
(4)
Section 59 (3) (b) and (4) (relating to undisclosed property) extend to an order for provision out
of the estate or notional estate of a deceased person made before the commencement of this
clause.
(5)
The 1916 provisions continue to apply in relation to any estate of a person who died before the
repeal of the provisions to which those provisions would have applied but for the repeal.
Part 4 Provisions consequent on enactment of Succession Amendment (Intestacy) Act 2009
12 Definition
In this Part:
amending Act means the Succession Amendment (Intestacy) Act 2009.
13
Transitional provision—intestacy
(1)
Chapter 4 (Intestacy) applies to the distribution of the intestate estate of a person who dies
intestate on or after the commencement of this clause.
(2)
The distribution of the intestate estate of a person who died intestate before the commencement
of this clause is governed by the law of this State as in force at the date of death.